Snowden and Civil Liberties: A Brief Follow-Up

By Benjamin Wittes
Wednesday, July 9, 2014, 9:00 AM

Yesterday, I posted a short piece saying that we should think about Edward Snowden's leak of large volumes of personal communications to the Washington Post as a significant civil liberties violation. In doing so, I noted the language of the Privacy Act. In response, a bunch of people have accused me of crying crocodile tears for civil liberties. And over at the Atlantic, the estimable Conor Friedersdorf has issued me a challenge:

As I've acknowledged here, Snowden indeed seems to have broken a law that I consider to be both legitimate and important. Now I've got a challenge for Wittes. Can he point me to his righteous calls for Bush and Obama administration officials who have violated the law in the course of the War on Terrorism—and there are many—to be held legally accountable? Could he give me a list of the Bush and Obama administration officials that he'd like to see prosecuted and jailed for their lawbreaking?

This seems a bit of a non-sequitur to me. For one thing, I did not call for Snowden to be jailed. My point was not about criminality. In fact, I specifically noted that I don't know if Snowden's conduct meets the terms of the Privacy Act and expressed doubt that he violated the criminal provisions of FISA. My point, rather, concerned the fact that our law is not sanguine about the indiscriminate disclosure of personal information about individuals that government collects. It was that the dissemination and release of highly-sensitive personal material to newspapers for publication to the general public is a far grosser infringement on privacy and civil liberties than the initial collection of that material by government---and one that the law protects against separately from whatever restrictions it might impose on collection.

Incidentally, I actually missed the most relevant statute on this point, which is 18 U.S.C. § 2511. Section 1(e) of the statute makes it a crime to intentionally disclose "the contents of any wire, oral, or electronic communication" intercepted under criminal law or FISA without authorization and with intent to obstruct an investigation. Again, as with the other statutes I cited, the fit here with Snowden's conduct may not be precise, and my point is not to say that his conduct meets all the elements of a criminal offense---much less to call for his jailing. It is simply to show, again, that Congress took very seriously privacy values not merely in restricting collection but also in restricting unauthorized disclosure by individuals of the sensitive details of people's lives that collection may sweep up.

I'm not sure why making this point obligates me to list the government officials I wish to see jailed and prosecuted.