Edward Snowden’s revelation that the US government was spying on millions of communications between civilians sent shock waves through Silicon Valley. Major technology companies that had often been complicit in the surveillance program, such as Facebook, Google, and Apple realized the full extent of government spying and faced public outcry over the lack of user privacy. They responded swiftly with heightened security measures; now, the Apple iPhone’s iMessage and Facetime, Facebook’s Messenger and WhatsApp, and Google’s Gmail, among other apps and services in the tech industry, use end-to-end encryption. In essence, end-to-end encryption ensures that companies are not able to break the encryption on their own users’ messages. Only the sender and recipient — the two “end” points of the information transaction — have the “key” to decipher a message.

If the NSA knocks on Yahoo!’s door requesting information with the threat of a $250,000 per day fine for noncompliance, as the NSA did last year, Yahoo! doesn’t even need to refuse. They can respond, correctly, that they simply don’t have the information. This new security method has made government surveillance more difficult, although certainly not impossible (formal requests for user information are hardly the only means of intelligence-gathering) and has affirmed company user privacy agreements. However, end-to-end encryption faces firm opposition from federal agencies and the threat of legislative regulation.

In November, UK Home Secretary Theresa May announced the Snoopers Charter, a proposed draft of the Investigatory Power Bill, which aims to update existing information communication regulations in light of new technologies. For months, many in the tech industry feared an outright ban of end-to-end encryption in the bill. The final piece of legislation is more nuanced, but serves the same ends of opening user information up to government access. Section 189 of the Snoopers Charter declares the Secretary of State may issue orders to companies “relating to the removal of electronic protection applied…to any communication or data.” In effect, the government would be able to order tech companies to remove end-to-end encryption or, more likely, ask Facebook, Google, or Apple to reengineer end-to-end encryption to provide a “back-door” for government intelligence agency access.

Currently, there are no similar proposals on this side of the Atlantic, but the US federal government has voiced similar opposition to end-to-end encryption. FBI Director James Cromey and Deputy Attorney General Sally Ouillian Yates recently testified to the Congress on this very issue. Cromey provided the amusing description of end-to-end encrypted messages intercepted by the government as “gobbledygook.” Yates spoke more firmly on the issue. A mandate on companies using end-to-end encryption “may ultimately be necessary,” she said. Noting that critics of the Snoopers Charter and policies like it often assert that engineering a “backdoor” is not possible, Yates responded, “Maybe no one will be creative enough [to solve the problem] unless you force them to.”

Efforts to pass regulations in response to new security technology could, however, run into legal and constitutional roadblocks. End-to-end encryption may be defended under the Fourth Amendment right to privacy against unreasonable search, as wiretapping often occurs without proper warrants on civilians who are not suspected of being involved in criminal activity.

Efforts to pass regulations in response to new security technology could, however, run into legal and constitutional roadblocks. End-to-end encryption may be defended under the Fourth Amendment right to privacy against unreasonable search, as wiretapping often occurs without proper warrants on civilians who are not suspected of being involved in criminal activity. A 2013 Supreme Court case on this grounds was dismissed, but simply because the plaintiffs could not prove they had been wiretapped. End-to-end encryption puts barriers on mass government surveillance and, therefore, may be defended as a means of ensuring Fourth Amendment privacy.

Issues of government-enforced decryption may also jeopardize Fifth Amendment protection against self-incrimination. With end-to-end encryption in effect and companies unable to comply with law enforcement orders, there have been requests in criminal cases that the accused decrypt their own phones, computers, or individual files for evidence gathering or be held in contempt of court for “obstruction of justice.” The question of whether decryption is a form of self-incrimination has yet to be decided definitively. Cases on the subject have vacillated back and forth on the issue. Jason Grimmelmann, a University of Maryland Law School Professor, has said the decision comes down to whether police have a justifiable reason to demand decryption, “If the police don’t know what they’re going to find inside,” he says, “they can’t make you unlock it.” Mass surveillance can similarly be cast as a blind search for incriminating evidence at the expense of users’ Fifth Amendment rights.

Proponents and apologists of government surveillance often assert that these rights to privacy are superseded by the indefinable and malleable concept of the state’s compelling interests, including national security and public safety. On these terms the debate can devolve into an argument of values in which little ground is gained by either side. Perhaps, a more compelling argument against end-to-end encryption regulation is that it’s bad policy, and that it stands against the state’s compelling interests.

As previously mentioned, in response to government requests for a “backdoor” into encrypted user information, technologists and technology companies have responded that it’s not possible without severely comprising the overall security of end-to-end encryption. One analogy that’s been used in this argument is that “there’s no way to outfit a safe with a backdoor that only the FBI can open.”

The wave of tech companies employing end-to-end encryption is not solely a response to the Edward Snowden leak. It can also be read as a general response to the state of cyber security, in other words, the dire state of cyber security, in which hacks have become “when” rather than“if” questions. This is not the time for the government to be mandating that companies scale back their security measures.

If we are considering the compelling interests of public safety, the threat of cybersecurity fraud and theft is mounting and should be prioritized by the federal government, not purposely exacerbated by requiring major tech companies to collect massive stockpiles of data whose security has been deliberately compromised. And certainly, after reflecting on this summer’s OPM breach, in which the social security numbers of over 22 million federal workers were stolen, federal agencies are hardly on firm footing when demanding major alterations to Silicon Valley’s cybersecurity infrastructure.

On October 29, the European Parliament voted on a resolution encouraging member states to offer asylum to Edward Snowden, the former government contractor who leaked classified information about the United States’  NSA surveillance program two years ago. The resolution also officially recognized Snowden as a “human rights defender.” The decision is nonbinding, but it stands as a forceful encouragement for European countries to offer Snowden asylum and protection.

Although the resolution is mostly symbolic, it reflects a massive shift in how government surveillance programs are evaluated by the European public and illuminates the changing face of relations between the United States and Europe. As a greater amount information on these programs has been made accessible, public opposition to the programs has grown. The EU parliament’s vote mirrors this collective change in view.

The altered public opinion shows the radical difference between the current political environment and that which gave rise to the development of these government surveillance programs. In the months following the September 11 attacks, governments around the world revised their conception of national security and constructed far-reaching surveillance programs in response to the pressing fears of future terrorist attacks.

In the United States, efforts to prevent terrorism became the country’s primary foreign policy priority, one that arguably took precedent over the nation’s long commitment to civil liberties. Leaders struggled to devise a response to the attacks and to act in the best interest of protecting the country.

In the past 14 years, although the face of terrorism has evolved, the threat of attacks remains present. The development of international terrorist organizations like ISIL continues to make national security a subject of primary concern for the United States and for countries around the world. Never is this fear more present than it is now, as France is still reeling from the terror attacks that took place within its borders on November 14.

Accordingly, the United States and its European allies continue to grapple with how to best devise an effective framework for protecting their national interests. The American NSA finds its counterparts in Germany’s Bundestag surveillance unit, France’s alleged Frenchelon, and the UK’s GCHQ surveillance unit. What’s more, Snowden’s leaked information exposed that these surveillance organizations have largely worked in tandem with the NSA. Coordination frees governments from domestic limits to surveillance in their own countries by spying on each other and then exchanging information. The NSA in particular is given more extensive leeway regarding intelligence-gathering on other countries and international organizations.

A Pew Research Center survey from 2014 shows that citizens in countries around the globe overwhelmingly find government surveillance of personal communications “unacceptable.”

Furthermore, it seems that in recent years, spying and surveillance conducted by Western governments has become more widespread. In October, Germany passed a new data retention law, expanding the ability of Internet and cellular providers to retain data. This past summer, France adopted a hugely controversial law that further enabled the government to pursue invasive surveillance methods, while Austria is in the process of evaluating new surveillance-related policy changes.  And the Obama administration – although committed to an overhaul – has recently restarted surveillance initiatives, still navigating its way to a new stance on the issue in the post-Snowden era.

So how does Snowden’s pardon by the EU parliament fit into this international landscape, one in which countries are as committed as ever to pursuing the very programs that Snowden sought to undermine?

First, the decision is undeniably legitimized by the fact that public opinion has been shifting away from support for these types of programs. In the wake of 9/11, national security might have provided enough grounds for the public to support these invasive measures; for many, however, government claims of national security no longer provide a tenable claim.

A Pew Research Center survey from 2014 shows that citizens in countries around the globe overwhelmingly find government surveillance of personal communications “unacceptable,” with 97 percent of Greek respondents, 88 percent of French respondents, 87 percent of German and Spanish respondents, and 70 percent of UK citizens polled holding this view. This  public context forms an environment in which the EU parliament has revised its stance to a more forgiving and even appraising position on Snowden and whistleblowers in general.

But discussing the merits or drawbacks of the parliament’s action does not present the full picture; EU members were motivated by more than just public support. There is a strong case to be made that the EU parliament’s pardoning  represented a diplomatic rebuke of the United States. By naming him a human rights activist, the EU has decisively challenged the United States and the Obama administration.

There has been no official statement from Obama on the decision, but in a response this summer to an online petition asking to pardon Snowden, the White House made its stance clear, stating  “He should come home to the United States and be judged by his peers – not hide behind the cover of an authoritarian regime.” It is evident that the administration’s position is in direct conflict with the EU parliament’s standing; this conflict suggests that the decision was intentionally defiant.

Why challenge the United States? One potential answer is that the EU wants to confront US hegemony, and this decision is part of a larger effort of resisting American power abroad. The chairman of the Workshop of Eurasian Ideas, Grigory Trofimchuk, has supported this interpretation. He argued in an interview with Radio Sputnik, “I think that Europe’s decision – is not simply a formal document, but the intentional act of defiance to Washington that goes against US policy on the Snowden issue…[Europe] gladly seized the opportunity to demonstrate its independence.”

In other words, perhaps more than a statement on surveillance, the EU parliament’s decision was largely an effort to capitalize on an opportunity to “demonstrate its independence.” Siding with Snowden allowed the EU to collectively cement its authority as distinctly separate from the United States’ influence. This interpretation would explain the apparent inconsistency of backing Snowden at a time when they are implementing policies that bolster their own surveillance programs.

Moreover, this challenge comes at a time when the United States has noticeably trailed behind European countries in its efforts to support the flow of refugees from Syria. Given that the United States often takes a prominent and leading role in the mitigation of international crises, it is significant that its presence has been weak in aiding the accommodation of Syrian refugees. Perhaps the EU parliament’s political move is a symbolic provocation, then, a signal to the United States. If the United States won’t step up, then the EU will act independently — its pardon of Snowden a symbolic gesture of that intention.

Ultimately, how this action by the EU parliament will influence US policy remains to be seen. With respect to Snowden, for the immediate future, not much will change practically. According to an interview with his attorney, Snowden will continue to live in Russia on his three-year residency permit and can only hope that the parliament’s decision will provide the impetus needed for European countries to take concrete action and offer him asylum.

We will also observe how the United States responds to this challenge to its authority in the international sphere. It remains to be seen whether the White House will directly confront the EU on this question of surveillance or whether it will act to reassert American authority on another front. In the wake of the major ISIL terror attacks worldwide, there is abundant opportunity for the United States to make moves on the world stage; Obama’s choices on policy and action will demonstrate to what extent the White House chooses to demonstrate its leadership.

Photo: Mike Mozart

Forgetting the Orwellian aspects of the NSA surveillance program (and you shouldn’t), this story has been pretty fun. Some have labeled NSA leaker Edward Snowden a hero, while House Speaker John Boehner called him a traitor. Rand Paul announced he is suing the federal government. Times columnist David Brooks, after applying some pop psychology to Snowden, concluded that this incident exemplifies how young people don’t trust institutions anymore. People like New Yorker contributor Jeffrey Toobin and Wire creator David Simon, not your usual supporters of the surveillance state, have defended the NSA and criticized Snowden.

Simon’s piece is especially interesting, and he lays out a good case why this program is not a big deal. The NSA is only capturing information about who calls whom and when, not recording the calls themselves. As Simon notes, this is an accepted police tactic. This program is allowed under current law. There was oversight of the program by Congress and the secret Foreign Intelligence Surveillance (FISA) Court.

But concerns over the NSA’s activities cannot be brushed aside so easily. Some Congresspeople have said they were unaware of the program’s existence. The FISA court has only denied warrants sought by the government a minuscule 0.03% of the time. This lack of meaningful oversight is one of the main problems with the current NSA surveillance program, and with many current national security policies. As any middle school social studies student will tell you, checks and balances are a hallmark of American democracy.

The other issue with the NSA’s actions is the level of secrecy. There are legitimate government secrets, and you can argue that this program should be one of them. But the lack of oversight, combined with the massive scale of this program and the amount of data collected from American citizens, means it’s important to have a conversation about it.

It’s worth looking at a domestic security program when thinking about how to handle the NSA program. New York City police use a tactic called “stop and frisk” to question people on the street that they have  a reasonable suspicion may have committed a crime. Opponents have criticized the program because it overwhelming targets black and Latino citizens. Proponents note the dramatic fall in New York’s crime rate over the last decade. The tactic has been subject to legal action that has forced the police to clarify and restrict their procedures. The current mayoral election in New York has included debates about stop and frisk, with most Democratic candidates opposed.

The NSA program and stop and frisk are not entirely comparable. It’s hard for the New York police to hide a program happening on the city streets. There is a legitimate case that antiterrorism activities need a greater level of secrecy to succeed. But both programs involve a trade-off between liberty and security. Like with stop and frisk, NSA proponents argue that the program has been successful and stopped dozens of attacks. But stop and frisk is being overseen by the courts and debated in the political process. The NSA’s activities have not been, until now.

Making such programs public will decrease their effectiveness. But isn’t it reasonable to assume that terrorists – or at least the most skilled and dangerous ones – already assume they’re under surveillance? Will this disclosure change their behavior that much?

In his speech responding to the NSA leak, President Obama said:

But I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.

This is exactly right. But by classifying these programs and denying their existence, the only people that get to make those choices are some White House staff and a handful of Congresspeople. Our society hasn’t been able to have that debate. Sometimes security does mean sacrificing liberty. But sometimes our commitment to liberty means that the national security apparatus must work harder to find ways of protecting us that don’t infringe on our privacy.