The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A lot of readers have seen John Oliver's amusing interview of Edward Snowden. If you haven't seen it yet, it's worth a watch. One of Oliver's themes is that Snowden actually hasn't had a major impact on American politics. Surveillance law is too complicated, Oliver suggests, and Snowden doesn't have a simple message. But I think there are other reasons why Snowden hasn't had a big impact on American public opinion—and also reasons that probably doesn't matter for achieving Snowden's goals. Here are some tentative thoughts on this big topic. I'll hope to follow up later, with more firm views, in light of comments and responses.
I'll begin with public opinion. Although the Snowden disclosures have impacted public opinion about government surveillance in some ways, they haven't caused a major shift. Different polls are worded in different ways and suggest different things. But my overall sense is that public opinion has long been roughly evenly divided on U.S. government surveillance and continues to be roughly evenly divided post-Snowden. For example, in 2006, a poll on NSA surveillance suggested that 51% found NSA surveillance acceptable while 47% found it unacceptable. Shortly after the Snowden disclosures began, public opinion was equally divided about the Section 215 program. And just a few weeks ago, a Pew Research poll from last month found public opinion pretty evenly divided again:
Overall, 52% describe themselves as "very concerned" or "somewhat concerned" about government surveillance of Americans' data and electronic communications, compared with 46% who describe themselves as "not very concerned" or "not at all concerned" about the surveillance.
The polling questions aren't asking identical questions, so any conclusions have to be tentative. But on the whole, I don't think the Snowden disclosures have caused a major shift in how the public thinks about national security surveillance.
The question is, why?
As I see it, a significant reason is that the message of the Snowden disclosures was muddled by their diversity and volume. The disclosures started with a legitimately huge story. Unbeknownst to the public, the innocuous-seeming Section 215 law had been interpreted, very implausibly, to allow a program of almost-universal collection of telephone records. That was a really big deal. That one program impacts most people in the U.S., and it is based on a surprising and secret interpretation of the law. The existence of this program was troubling on a lot of fronts. I have to speculate about a counterfactual, which is always fraught with difficulty. But I would guess that just leaking this one program could have significantly changed public opinion about NSA surveillance.
But that's not what happened. Instead, Snowden apparently took over a million classified documents and passed the full set off to like-minded journalists. The various journalists have then gone through the trove and have picked out what they think should be published, resulting in long strings of stories over time.
This muddled the message for a few reasons. First, the rest of the Snowden disclosures never packed the punch of the initial Section 215 disclosures. A lot of the Snowden stories just filled in details about programs that we already knew about. Sure, the stories were written to create an impression of scandal. But a lot of times they just told us that the NSA was doing pretty much what you would have guessed they were doing.
Consider last fall's story in the German newspaper Der Spiegel, based on internal NSA documents taken by Snowden, on which forms of encryption the NSA can decrypt readily and which ones it can't. The NSA was established in large part to crack encryption schemes. It's hard to see the scandal in the NSA doing what the NSA was created to do.
Second, the volume and diversity of stories made it hard to foster a coherent response. A single narrative can lead to a single focused reaction. But hundreds of different stories, which may or may not suggest a problem in each depending on your perspective, and which describe different aspects of different programs—well, what do you do with that? Snowden's supporters envision each story as adding more more fuel to the same fire. But I think it came off to a lot of people as hundreds of pockets of smoke—each of which might or might not, upon investigation, end up being caused by a fire—that were hard to get a sense of as a whole.
Third, Snowden's collection of over a million documents, and his passing of the entire set to those who generally shared his agenda, put Snowden in a much less flattering light. From what I can tell, Snowden engaged in a fishing expedition for as many documents as he could illegally collect, and he then illegally passed off the full set to others, without looking at them himself, with the hope that they others would do a good job and would consider U.S. national security interests appropriately. John Oliver raises some of the problems with this reckless strategy of bulk collection (so to speak) starting at the 19:40 mark in his video.
The result is that Snowden remains a deeply divisive figure. He is loved by some and hated by others. Granted, some will say that Snowden the person shouldn't be the story—at least outside movies like Citizenfour and dozens of awards bestowed on him by civil liberties groups. But you don't get to pick what people will see as "the story," and for better worse, having such a divisive figure be a central character helps keep public opinion divided.
For these reasons, and others, I think Snowden hasn't had the impact on U.S. politics that some might have expected.
At the same time, though, I'm not sure that matters so much for what Snowden is trying to do. Snowden is having a big impact, I think, but just not through the usual process of impacting U.S. public opinion as a whole.
That's true for two reasons: One technological, the other legal.
First, the technological reason. It seems to me that Snowden's goals are not so much procedural as substantive. Impacting public opinion would be helpful. But if I understand Snowden's goals correctly, the important thing for him is to have less government surveillance rather than a more informed public that may or may not choose less government surveillance.
I'm getting this in part from Snowden's really interesting contributions in a recent Reddit AMA. Snowden was asked how to make NSA surveillance a front-burner political issue again so the law could be reformed. He responded by suggesting that law is just means to an end—and that if the law gets in the way, extralegal ways of achieving the ends should be used. Here's what he wrote, with emphasis in the original:
We can devise means, through the application and sophistication of science, to remind governments that if they will not be responsible stewards of our rights, we the people will implement systems that provide for a means of not just enforcing our rights, but removing from governments the ability to interfere with those rights.
You can see the beginnings of this dynamic today in the statements of government officials complaining about the adoption of encryption by major technology providers. The idea here isn't to fling ourselves into anarchy and do away with government, but to remind the government that there must always be a balance of power between the governing and the governed, and that as the progress of science increasingly empowers communities and individuals, there will be more and more areas of our lives where—if government insists on behaving poorly and with a callous disregard for the citizen—we can find ways to reduce or remove their powers on a new—and permanent—basis.
Our rights are not granted by governments. They are inherent to our nature. But it's entirely the opposite for governments: their privileges are precisely equal to only those which we suffer them to enjoy.
We haven't had to think about that much in the last few decades because quality of life has been increasing across almost all measures in a significant way, and that has led to a comfortable complacency. But here and there throughout history, we'll occasionally come across these periods where governments think more about what they "can" do rather than what they "should" do, and what is lawful will become increasingly distinct from what is moral.
In such times, we'd do well to remember that at the end of the day, the law doesn't defend us; we defend the law. And when it becomes contrary to our morals, we have both the right and the responsibility to rebalance it toward just ends.
If I understand Snowden correctly, he sees law as only a means to an end. If the democratic process results in laws that are consistent with "our morals"—perhaps, more specifically, his morals—then okay. But if not, the engineers can and must take steps to "remove" the government powers that the law can otherwise enable. Technology can do what law might fail to do, and it doesn't require the democratic process. Even better, it can thwart the democratic process if the democratic process goes the wrong way. Later in the same Reddit AMA, Snowden makes the point more directly about where the important changes are happening:
[M]any of the changes that are happening are invisible because they're happening at the engineering level. Google encrypted the backhaul communications between their data centers to prevent passive monitoring. Apple was the first forward with an FDE-by-default smartphone (kudos!).
It's going to be a long process, but that's starting to change. The technical community (and a special shoutout to every underpaid and overworked student out there working on this—you are the noble Atlas lifting up the globe in our wildly inequitable current system) is in a lot of way left holding the bag on this one by virtue of the nature of the problems, but that's not all bad. 2013, for a lot of engineers and researchers, was a kind of atomic moment for computer science.
It's at the technical level, especially with respect to encryption, that Snowden's disclosures have had the biggest impact. The Snowden stories raised enough concerns about U.S. government spying—especially concerns outside the U.S., where opposition to U.S. spying is more universal—that it became a smart business decision for companies with a global customer base to increase the use of encryption. And they encouraged the creation and use of surveillance-thwarting technologies by individuals, too. For that, you don't need to influence the mainstream of U.S. political opinion. Instead, you just need to influence a subset of consumers around the world. Or even just a few individuals who might create new products that limit what governments can do. And that has had a major impact on government surveillance.
Second, Snowden's disclosures may end up having a big impact on the law because Section 215 has a preexisting sunset provision. Pre-Snowden, it seemed kind of odd that Section 215 had a sunset. On its face, the power granted by the statute didn't seem like it should be particularly controversial. But the FISC ended up secretly approving the bulk telephony metadata program under the Section 215 statute, however implausibly. And as a result, Congress has to affirmatively re-enact Section 215 to keep the program running or else it will expire on June 1st.
As you're probably aware, it's hard to get anything through Congress these days. Nothing controversial gets through without a really big push. In that environment, the sunset powerfully flips the all-important default. Instead of a program continuing unless the forces align to stop it, the program will stop unless the forces align to continue it. That may end up making the difference with Section 215. As Ben Wittes pointed out recently, it's not clear if Congress will renew any kind of modified version of Section 215. And if the program lapses because of Congressional inaction, it will likely have been the Snowden disclosures that shed light on the FISC's implausible interpretation and made the statute controversial. Because of the sunset, swaying public opinion in the usual way won't be necessary. Making the law a source of major controversy may prove enough.
Anyway, those are my tentative thoughts. I'm curious to receive responses, and especially those that may lead me to rethink my approach.