Edward Snowden Belongs in Prison

by Benjamin Studebaker

Today’s post is exactly what it looks like–I am arguing that Edward Snowden, the NSA surveillance-leaker, belongs in prison, not only because he has broken the law, but because he has acted in a way which harms the American interest.

I wasn’t really bothered by Edward Snowden until today. Yes, I had written that I didn’t think the NSA surveillance program was harming the American people in any significant way. But I had also noted that the supposed “revelations” revealed by Snowden were almost exclusively old news–the public had been well-apprised of the surveillance program since 2005, and the laws requiring and authorizing the government to act as it did were on the public record. I found Snowden’s leak irrelevant, insofar as he was making a big deal out of information that was, for the most part, freely available. I also found him obnoxious, insofar as he has an unreasonable fear of state surveillance, but that opinion was not, in itself, criminal. Snowden was disinforming people more than he was informing them–he was creating panic, causing people to believe that every word they’ve spoken on the phone has been individually listened to and that the state was some kind of 1984-style fascist boogie monster. The reality is much closer to “the government never listens to your phone conversations” than it is to “the government always listens to your phone conversations”. But Snowden’s not the first to disinform people. There are many media outlets that leave their viewers, readers, and listeners more poorly informed when they finish than they were when they began. Snowden’s behavior was harmful, but not prison-worthy. It’s important to have that fair and free exchange of ideas we always go on about.

No, the bit that really makes it important that we do force Hong Kong to extradite Snowden, that we put him in prison and make an example out of him, is this new bit I just ran across today:

Snowden has been leaking information to the Chinese regarding the United States’ cyber warfare program.

This goes beyond trying to start a conversation in the United States about the ethics of surveillance. Snowden has given a foreign state classified information about the US national security apparatus. Now, it’s more or less certain that China was already aware that the United States has a cyber warfare program, and it likely already knows a good deal of  information about it, most likely more than Snowden even had to reveal. But that’s beside the point–Snowden gave classified information about national defense to China. China is already using this opportunity to damage America’s reputation. In a state newspaper, China Daily the American government is already being disparaged:

For months, Washington has been accusing China of cyber espionage, but it turns out that the biggest threat to the pursuits of individual freedom and privacy in the US is the unbridled power of the government.

Never mind that while the United States keeps a searchable database of phone and internet records, China actively regulates web content and takes down websites. Already, a false equivalence is being made by China and used as propaganda to harm the United States’ reputation in the world. Already, keeping records is being talked about as if it were no different from regulating speech. The 4th amendment is not the 1st amendment, and arguably, the surveillance program doesn’t even violate the 4th amendment. The Supreme Court doesn’t think it does (though that in itself doesn’t mean they’re right–remember Plessy v. Ferguson?). Monitoring public networks like phone lines, roads, or radio waves is not obviously equivalent to barging into someone’s private residence without a warrant, either legally or morally. We don’t consider every police officer on patrol on the roads an infringement on our liberties, even though those officers are dispatched precisely for the purpose of watching us and looking for criminal activity. The phone lines are more similar to the roads than they are one’s home. If two people meet in the street, in public, and have a conversation in which they agree to commit murder, and a police officer overhears this conversation and arrests the pair for “conspiracy to commit murder”, there’s been no unusual infringement upon liberties. Why do we imagine the phone to be private? Or the internet, for that matter? The state laid the phone lines and the cables, just as it paved the streets. Your phone and your computer are in your home, but the information you transmit goes out into the ether, and if the state wants to listen in, bully for it. If you don’t want the state to hear, don’t use technology that relies on state infrastructure. Do what people used to do 200 years ago–meet in person in a private place. It’s not that arduous–the American revolutionaries pulled it off, and they didn’t even have cars or public transportation.

Whether China got any information it didn’t already have from Snowden, it is essential that the United States demonstrate that leaking national defense information to foreign states will not result in a happy life in Hong Kong in which one enjoys the love and adoration of libertarians until the end of one’s days. US citizens cannot be permitted to attempt to compromise the security of their fellows. Future Snowdens need to be deterred, and that means the US government needs to make Snowden’s life unpleasant, at least for a short while. Fortunately, there’s a law for that.

What law did Edward Snowden break? He violated Section 2 of the Espionage Act of 1917, which reads as follows:

Whoever, with intent or reason to believe that it is to be used to the injury or the United States or to the advantage of a foreign nation, communicated, delivers, or transmits, or attempts to, or aids, or induces another to, communicate, deliver or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defence, shall be punished by imprisonment for not more than twenty years

Snowden is lucky the United States is not currently in a state of war with any country–if that were the case, he could be imprisoned for up to thirty years or face the death penalty, as the law stands. That said, does he need to get 20 years? Snowden’s leaks were not themselves especially damaging, so perhaps not. Does he need to go to a really awful hellhole? Not at all. But he does need to go to prison for some length of time, so let’s get on that, shall we?