Peter Swire: Silicon Valley vs. Washington

Tech types see Edward Snowden as having done more good than harm

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Is Edward Snowden a whistleblower or a traitor? There is a vast cultural divide between Silicon Valley and Washington on this issue, and the reasons reveal much about the broader debates about what to do in the wake of his leaks.

In terms of my own perspective, I have written about privacy and the Internet for two decades, working closely with both civil liberties groups and Internet companies. On the government side, I first worked with intelligence agencies in the late 1990s when I chaired White House task forces on encryption and Internet wiretap laws.

As a member of President Barack Obama’s Review Group on Intelligence and Communications Technologies, I spoke with numerous people in the intelligence community. Not one said that Mr. Snowden was a whistleblower. The level of anger was palpable.

Part of the anger arises from the daily routine of working with classified materials. Merely carrying a cellphone into a secure facility by mistake amounts to a security violation. Thousands of security officers enforce the rules, and people can and do get fired when they are not scrupulous with classified materials.

Intelligence officers see Mr. Snowden as a serial destroyer of classified secrets. He plotted for months to violate the law on a massive scale. He has tipped off foreign adversaries about numerous programs that will require countless hours of work to revise; many will not regain their previous effectiveness.

Even though Mr. Snowden rejected all the existing options for a whistleblower — including congressional committees or avenues within the NSA — the view from Silicon Valley and privacy groups is much different. The leader of a Silicon Valley company told me last fall that more than 90 percent of his employees would call Mr. Snowden a whistleblower.

Part of that reaction is based on the view that this robust national debate about NSA programs would not be happening had Mr. Snowden not leaked what he did. The Silicon Valley concern about the NSA arises from a philosophy of anti-secrecy libertarianism. A well-known slogan there is that “information wants to be free.”

The technology community’s anger mounted when the media reported that the NSA had undermined at least one international encryption standard. The ability to export strong encryption was a hot-button issue in the 1990s, when the NSA argued that use of such encryption would enable terrorists and enemies to communicate immune from surveillance. A coalition of techies, privacy groups and Internet companies in 1999 persuaded the federal government to permit the export of strong encryption. Last year’s media reports awoke dormant fears among techies that the NSA was creating a fundamentally insecure Internet.

The anger increased when the media reported that the NSA had tapped into the communications lines used by providers of the online “cloud.” In response, Microsoft counsel Brad Smith wrote that “government snooping potentially now constitutes an ‘advanced persistent threat.’ ” That is a term of art previously used primarily to describe cyberattacks by China. The major tech companies then bought full-page newspaper ads to express their serious concerns.

The gap between anger at Mr. Snowden and anger at the NSA shows the tension between the government and much of the tech world. But which side is correct?

After wrestling with the issue, I think Mr. Snowden could have been a conscientious objector — but he has thus far failed the test. A central element of nonviolent dissent is to move society’s conscience by taking personal responsibility. Mohandas Gandhi and Martin Luther King Jr. went to jail for their beliefs, but Mr. Snowden ran away.

Going to jail is a lot to ask of a person. But Mr. Snowden knowingly set himself above the law, claiming a higher morality. Full clemency, without any jail time, would create a bad precedent in holding others in the intelligence community accountable should they break security rules.

Mr. Snowden’s fate aside, the culture clash holds lessons in how to blend the government and tech perspectives. The president has issued a directive that foreign policy, economic and privacy considerations must henceforth be included in sensitive decisions about intelligence collection. As shown by a new agreement between the Justice Department and technology companies, there will be greater transparency about government access to communications.

Fundamentally, the traitor-or-whistleblower debate comes down to different views of what values should be paramount in governing the Internet we all use. The Internet is where surveillance happens to keep our nation safe. It is also where we engage in e-commerce and express ourselves in infinite ways. The goal is to create one communications structure that safeguards diverse, important values.

Peter Swire is a professor of law and ethics at the Georgia Institute of Technology. He wrote this for The Washington Post.

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