Were you taken aback by the Washington Post‘s recent editorial stance opposing a presidential pardon for Edward Snowden?[1] I don’t know if this is a first, but as journalist Glenn Greenwald[2] correctly pointed out, no precedent comes to mind: here’s a top-tier, credible news outlet, which, after probing the information, deeming it in the public interest, publishing it, then winning an award for it, dumps the source, denying him the sacrosanct protection that in the past benefited many so-called whistle-blowers who may have had much more dubious motives. In this case, there’s an additional irony, as the fame the Post generally enjoys is due at least in small part to confidential information coming from W. Mark Felt, better known as Deep Throat, who was the FBI’s number 2 at the time of the Watergate scandal. Perhaps Snowden should have asked the media for anonymity?

To support its position, the Post puts the spotlight on the National Security Agency’s PRISM surveillance program, now known thanks to Snowden, which would be “clearly legal” and “not clearly threatening to privacy.” The Post says Snowden’s revelations “disrupted lawful intelligence-gathering, causing possibly ‘tremendous damage’ to national security, according… to the House Permanent Select Committee on Intelligence.” But there is little, if any, proof of that, and one can wonder why the Post swallowed the official version so quickly. History has shown that in such cases, a bit of journalistic skepticism is often warranted.

Under PRISM, the NSA managed to access Microsoft, Yahoo, Google, Facebook, YouTube, PalTalk, AOL, Skype and Apple servers to extract metadata, but also content — audio and video conversations, e-mails, documents — provided one of the parties to the exchange was supposedly outside the U.S.[3] Was this legal or not? The answer seems complex enough to say the Washington Post was a bit quick to pull the trigger.

In both Canada and the U.S., it seems laws were left rather fuzzy, if not full of loopholes, so that security agencies can play on definitions as they see fit. In other words, there’s the spirit of the law, the letter of the law, and then there’s what actually happens in real life. The concept of “metadata” is a case in point. On paper, communications “content” is protected from prying eyes, and so-called “metadata” (data about other data) is deemed fair game. But lots of what is increasingly considered sensitive, personal information is neither actual content nor metadata. For example, would you consider it acceptable to have your Google queries and the websites you visit monitored by a third party behind your back? Would you welcome surveillance of your movements through the collection of all the local networks you log on to? And would you accept that your geopositioning data in your phone be accessed by the government? Are those content, or metadata?

The Canadian counterpart of the NSA is CSEC (Communications Security Establishment Canada), with a budget of $460 million and apparently more than 2,000 employees. Canada is also eavesdropping. CSEC and the NSA work closely together, and with their counterparts in the United Kingdom, New Zealand and Australia. They are the so-called “Five Eyes.” These agencies have agreed to help each other, and this includes sharing information. All the countries mentioned above have laws that limit spying on their citizens, inside their borders, but it’s not unreasonable to fear that surveillance agencies can ask for the help of their foreign peers to indirectly do what they cannot do openly. Lisa M. Austin of the University of Toronto writes: “Apart from the issue of Canadians crossing the border and becoming directly subject to U.S. jurisdiction, there is the issue of information sharing between the United States and Canada, as well as with other allies. If U.S. authorities can collect information about Canadians on lower standards than are permitted within Canada, and then share this information with Canadian authorities, then this effectively creates an end-run around our constitutional guarantees even if it is, on some level, ‘lawful.’ Although we do not know enough about Canadian practices to assess the seriousness of this worry, recent evidence suggests it is not that far-fetched.”[4]

A significant volume of Canadian Internet traffic, including purely domestic traffic, goes through the U.S., where it can be intercepted by the NSA: “Once the data flows beyond the border, it no longer enjoys Canadian constitutional and other legal safeguards,” according to Andrew Clement and Jonathan A. Obar, respectively from the University of Toronto and the University of Ontario Institute of Technology. “This means the NSA and other U.S. agencies can legally intercept and analyze it without warrants or other judicial oversight. Furthermore, Canadians have no legal basis to challenge or remedy any abuses.”[5]

Back to Snowden and the Washington Post. Assuming PRISM is legal does not materially change the journalistic debate, as it’s the public interest that’s the overarching standard, not legality. Since when should the media be limited to “exposing” what’s illegal? And what’s the risk to national security of telling the public anything they do on Facebook is being monitored? In fact, the media could and should be blamed should they elect to hide such information.

Snowden did not emulate WikiLeaks. He did not simply dump the bulk of what he stole on the Internet with disregard for the consequences. Katrina vanden Heuvel, publisher and editor of The Nation, wrote: “Snowden didn’t make the choice of what secrets were published. That was made by reporters from responsible papers. In fact, as The Intercept’s Glenn Greenwald notes, the stories the editorial board [of the Washington Post] cites were determined by reporters and editors of the Post itself to be important to the public good… ”[6] In other words, if national security was endangered, and if Snowden deserves trial, then perhaps the Washington Post should also be charged.

By going through the press (The Intercept, The Guardian, the Washington Post), Snowden actually followed the footsteps of Daniel Ellsberg, who leaked the Pentagon Papers in 1971. The New York Times (and the Washington Post a few days later) then cautiously went through the material supplied by Ellsberg. It sifted out anything that could pose a risk to national security or endanger someone, and above all it put the facts into context and made the story understandable for the public. The U.S. government, as we know, then went to court and tried to block publication, on the grounds of risks to national security. It failed miserably. Erwin N. Griswold, who pleaded for the administration, admitted years later: “I have never seen any trace of a threat to the national security from the Pentagon Papers’ publication. Indeed, I have never seen it even suggested that there was an actual threat.”[7] It is now generally understood that media coverage of the Pentagon Papers, and the Pentagon Papers themselves, was harmless, despite the Nixon administration’s grandiose contentions. Will we, when the dust settles, have the same kind of admissions in the Snowden affair?

In both Ellsberg’s and Snowden’s cases, decisions about what to publish and how were made by professional journalists. Nobody forced the Washington Post to expose PRISM or other NSA operations. The paper made its own choices. It is rather stunning, to say the least, to see the disclosure of PRISM by Snowden construed as an argument to strike out the pardon option. And this, after the Washington Post won a Pulitzer Prize (along with The Guardian) for the story. And as others have mentioned, this is a rather strange hint from the Post to future, potential whistle-blowers.

© Michel Lemay.

[1] No Pardon for Snowden, Washington Post, September 17, 2016.

[2] GREENWALD, Glenn, WashPost Makes History: First Paper to Call for Prosecution of Its Own Source (After Accepting Pulitzer), The Intercept, September 18, 2016.

[3] MILLS, Jon L., The Future of Privacy in the Surveillance Age, in After Snowden, Privacy, Secrecy, and Security in the Information Age, edited by Ronald GOLDFARB, Thomas Dunne Books, St. Martin’s Press, 2015.

[4] AUSTIN, Lisa M., Lawful Illegality: What Snowden Has Taught Us about the Legal Infrastructure of the Surveillance State, in Law, Privacy and Surveillance in the Post-Snowden Era, edited by Michael GEIST, University of Ottawa Press, 2015, p. 118.

[5] CLEMENT, Andrew and OBAR, Jonathan A., Canadian Internet “Boomerang” Traffic and Mass NSA Surveillance: Responding to Privacy and Network Sovereignty Challenges, in Geist, op. cit., p. 27.

[6] VANDEN HEUVEL, Katrina, Edward Snowden is the Perfect Candidate for a Presidential Pardon, Washington Post, September 20, 2016.

[7] In an op-ed piece in the Washington Post on February 15, 1989. See BRADLEE, Ben, A Good Life, Touchstone Books, 1995, p. 323.