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When the Trump administration obtained an indictment of Edward Snowden for violation of the Espionage Act of 1917, many of us who believe that the Fourth Amendment means what it says were deeply critical of the government, and we remain so today.
Snowden is the former CIA and National Security Agency operative who blew the whistle on NSA and FBI mass undifferentiated warrantless spying on Americans.
The spying consisted of capturing all fiber-optic data that was transmitted into, out of and within the United States. As no warrants were sought or obtained and no targets were named, it captured the communications of everyone.
The Fourth Amendment was written to keep the government out of our private affairs. Thus, with the requirement of probable cause, the Fourth Amendment explicitly outlaws general warrants that permit the bearer to search wherever he wishes and seize whatever he finds. The amendment requires every warrant to describe the place to be searched or the person or thing to be seized.
The Foreign Intelligence Surveillance Court, meeting in secret with only government lawyers appearing, uses its own concocted standard of probable cause. That standard is probable cause of communicating with a foreign person as the requirement for a surveillance warrant. That standard is profoundly contrary to the Constitution.
So, if you call your cousin in Toronto or a bookseller in London, under this dreadful law, the FISA Court can authorize the NSA or the FBI to capture ALL your communications. The emphasis is on "all," as the surveillance will extend to all to whom you communicate, not just your cousin or your bookseller, and all to whom they communicate, out to the sixth degree of communications.
President George W. Bush pushed through congressional legislation in 2006 and 2007 that immunized telecom and internet providers from liability in return for their compelled cooperation with the feds. So, when the feds come calling, the providers have no choice but to open the front door. But Snowden revealed that the NSA and FBI were obtaining warrants from the FISA Court as a subterfuge. The feds do get FISA warrants, but only as a cover for their mass undifferentiated warrantless spying. This means that NSA and FBI use of the FISA Court is largely a sham.
The degree of NSA and FBI unconstitutional and criminal spying is breathtaking. Because of Snowden, we now know that all the data the feds mine, if printed, would fill 27 times the holding capacity of the Library of Congress every year. This is unconstitutional because it defies the Fourth Amendment. It is criminal because it constitutes computer hacking. When Snowden began his work at the CIA and the NSA, he took two oaths. The first was to keep secret whatever his bosses told him was secret. The second oath was to preserve, protect and defend the Constitution.
What to do when one's sworn legal obligations clash? When Snowden revealed that even the FISA Court's unconstitutional watering down of the Fourth Amendment was not good enough for the federal spies, that they were capturing every keystroke without warrants, and collaborating with the British to do the same on Americans in foreign countries, he exposed a raw truth of government lawbreaking on a massive scale.
The intelligence community that Snowden foiled constitutes the same unchanging parts of the government who were in hot pursuit of former President Donald Trump. Trump himself praised the indictment of Snowden and even suggested that Snowden should be executed for his revelations. In an ironic twist, Trump now stands indicted for the same crimes as Snowden.
History teaches that greatness often requires taking chances. When stuck at the Moscow airport after the U.S. State Department invalidated his passport, Snowden remarked that he'd rather be stateless than voiceless. Today, he is an American banished from his homeland. Yet, he remains a symbol of greatness.