I'm not even as impressed with this argument as Charlie Pierce is, mostly because it's only vaguely a legal argument, and largely because it wants to declare legal and illegal what the authors don't like; which is just like saying Obamacare is unconstitutional despite the Supreme Court. Not an impressive position, in other words.
But it gives me an excuse to raise the Snowden issue again, mostly because of this one sentence:
Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”I appreciate the need to base your argument on shock and awe, but it generally doesn't work any better as a polemical strategy than it does as a military strategy. Indeed, it's kind of like opening your argument to the jury with a joke; if it doesn't work, you're pushing uphill the rest of the way.
And the shock and awe of the NSA didn't work.
When revelations came out about Total Information Awareness, the program wasn't shuttered, those responsible buried beneath the prison, and the computers burned, the buildings razed, and the grown sown with salt so never again would this horror be unleashed on decent American citizens. Congress just made it all legal. So, frankly, I'm not sure the public was ever shocked.
And now we find out the real problem is with making all information "digital" in the first place:
The fact that Snowden has made digital copies of the documents he accessed while working at the NSA poses a new challenge to the U.S. intelligence community that has scrambled in recent days to recover them and assess the full damage of the breach. Even if U.S. authorities catch up with Snowden and the four classified laptops the Guardian reported he brought with him to Hong Kong the secrets Snowden hopes to expose will still likely be published.
You simply cannot keep it from getting out, or even reproducing.
A former U.S. counterintelligence officer following the Snowden saga closely said his contacts inside the U.S. intelligence community “think Snowden has been planning this for years and has stashed files all over the Internet.” This source added, “At this point there is very little anyone can do about this.”
And this is the other reason why the public is not shocked: Glenn Greenwald and Edward Snowden because both of them seem to think they're living out the plot of a cheap '60's spy movie:
Glenn Greenwald, the Guardian journalist who Snowden first contacted in February, told The Daily Beast on Tuesday that Snowden “has taken extreme precautions to make sure many different people around the world have these archives to insure the stories will inevitably be published.” Greenwald added that the people in possession of these files “cannot access them yet because they are highly encrypted and they do not have the passwords.”* But, Greenwald said, “if anything happens at all to Edward Snowden, he told me he has arranged for them to get access to the full archives.”
The arrangement to entrust encrypted archives of his files with others also sheds light on a cryptic statement Snowden made on June 17 during a live chat with The Guardian. In the online session he said, “All I can say right now is the U.S. government is not going to be able to cover this up by jailing or murdering me. Truth is coming, and it cannot be stopped.”
Part of this brings us back to problem no. 1: digital information is practically fecund. You may get the original document and all the copies, or the negative of the photograph. But the "original" of a digital document doesn't mean a damned thing. Nor does spreading it around the world seem to mean much, either.
Snowden isn't making himself more secure with this kind of adolescent paranoia. He's just making himself more and more the topic of discussion. I've no doubt the government is quite sure what Snowden took, and the impact of it so far has really not rocked the foundations of Western Democracy; nor is it likely to. This cloak and dagger talk is getting embarrassing. But the two principals here just keep encouraging that:
That man is so brave!“When I was in Hong Kong, I spoke to my partner in Rio via Skype and told him I would send an electronic encrypted copy of the documents,” Greenwald said. “I did not end up doing it. Two days later his laptop was stolen from our house and nothing else was taken. Nothing like that has happened before. I am not saying it’s connected to this, but obviously the possibility exists.”
When asked if Greenwald believed his computer was being monitored by the U.S. government. “I would be shocked if the U.S. government were not trying to access the information on my computer. I carry my computers and data with me everywhere I go.”
*and yet "Snowden was able to access files inside the NSA by fabricating digital keys that gave him access to areas he was not allowed to visit as a low-level contractor and systems administrator." So I'm sure those passwords are impenetrabobble, as Albert Alligator would say.
I think Snowden's done cotched his head in a grackle's nest. Might be just the disguise he needs right now....