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In defense of whistleblowers: EFF responds to a Malcolm Gladwell article

The bronze sculpture
The bronze sculpture "Anything to Say?" representing whistleblowers Edward Snowden, Julian Assange and Chelsea Manning is pictured in front of the United Nations European headquarters in Geneva, Switzerland, 14 September 2015

REUTERS/Pierre Albouy

This statement was originally published on eff.org on 26 December 2016.

Author Malcolm Gladwell recently name-checked the EFF in an article published in The New Yorker. Mr. Gladwell's piece examines what he sees as the differences between whistleblowers Edward Snowden and Daniel Ellsberg, and concludes that Snowden doesn't deserve the respect (or apparently the same legal protection) that Ellsberg does. It's always nice to be mentioned in respected publications, but as an organization that has actual experience with trying to make change with whistleblower information, we sharply disagree with Mr. Gladwell's conclusion, and even more so with how he gets there.


Gladwell's Theory of Legitimate Whistleblowers

In his piece, Mr. Gladwell dreams up a fictional whistleblower, Daniel Snowberg, an ex-EFF intern with a PhD in international relations who is working as an analyst at the NSA. This highly credentialed guy runs across a copy of a Foreign Intelligence Surveillance Court (FISC) authorization, which requires phone companies to hand over records to the NSA under Section 215 of the Patriot Act (sound familiar?). He's troubled by it, and sends it to his old friends at EFF, who confirm that it looks unconstitutional (so far, so good). Snowberg then goes to Senator Ron Wyden, who also agrees that the order is unconstitutional and suggests that Snowberg go to the national press with it. Snowberg eventually leaks the order to the Washington Post.

As Mr. Gladwell tells it, this trajectory - credentials, Congress, big-time press and only revealing a single thing at a time - puts his fictional creation in the same league as Ellsberg, an ex-Marine and Harvard graduate who studied under a Nobel Prize winner and gave advice to Henry Kissinger before disclosing the Pentagon Papers. Gladwell paints good leaking as part of a deep game where key insiders play chess with each other by leaking and then counterleaking. Mr. Gladwell contrasts Snowberg and Ellsberg to Snowden, a community college dropout who left the CIA under a cloud and revealed an unprecedented global surveillance infrastructure. Snowden wasn't playing a game; his motivation is that he cares about democracy and the public's right to know and make informed decisions. Because of Snowden's differences with Ellsberg (or Snowberg), Mr. Gladwell claims that Snowden isn't an 'insider' leaker who we should trust, but instead is a "radicalized hacker."

Let's put aside, for a minute, that Snowden revealed many programs that qualify as both controversial and illegal, including far more than the NSA's mass collection of telephone records - the only disclosure of which Gladwell seems to approve. We learned that the NSA was systematically attacking the encryption that underpins the Internet, that tech companies like Google and Facebook were secretly collaborating with the government beyond what the law required, that the NSA was covertly hacking overseas datalinks owned by those same US tech companies, and that the spy agency was collecting data on hundreds of millions of innocent people around the world. In response to these disclosures, a review board of legal and intelligence experts appointed by President Obama recommended more than forty sweeping changes to how the intelligence community conducts surveillance - including additional privacy protections for foreigners not protected by the law. And a federal appeals court held that the NSA had engaged in widespread illegal conduct.

Let's also put aside the fact that neither Snowden nor Ellsberg revealed all that they know - Gladwell makes much of this in holding up Ellsberg, but it's clear that both men made that same choice. This "good leaker" argument which holds Ellsberg up as the only legitimate whistleblower is something we've heard over and over from a certain kind of Washington insider. And it's completely wrong.

Washington insiders often want to look reasonable by saying they understand the need for whistleblowers in the abstract, and point to Ellsberg, whose acts are safely in the past, as an example. But when it comes to the actual steps someone has to take today, they find some way to oppose. Today's whistleblowers always deserve jail, or worse, the argument goes.

Beyond smacking of elitism - apparently you have to go to Harvard and rub shoulders with Henry Kissinger to be considered a "real" whistleblower - what's clear is that this narrative greatly reduces the number of whistleblowers who deserve respect and protection. It's already a tremendous act of courage for an insider to stand up and call out illegal or immoral behavior. They risk their jobs, their ability to ever get a good job again, their friends, their community and maybe even their family. Mr. Gladwell's additional credential requirement makes sure that those numbers are even smaller.

The recently released additional sections of the House Permanent Select Committee on Intelligence report also suggest a stop at an Inspector General's office - like the one who was just sent on leave for retaliating against a whistleblower. The House report is based upon a fantasy of an internal agency whistleblower structure and Congressional oversight and that can actually raise and correct policy wrongs and protect people who come forward. This simply does not exist. On the internal side, Snowden's efforts to raise his concerns internally, along with the horror stories of retaliation against Thomas Drake, William Binney, J. Kirk Wiebe and most recently John Crane - all of whom had serious credentials, by the way - abundantly proves that neither congressional oversight nor internal processes actually work to protect policy-based whistleblowers much less ensure that the rest of us are informed of potentially illegal activities involving our communications.


The Good Leaker Theory Fails

Part of the reason Mr. Gladwell's fantasy-based critique of Snowden bothers us is that we've tried a version of the "Ellsberg Good Leaker path" for our original NSA whistleblower, Mark Klein, starting in 2006.

Mr. Klein was in tech support at AT&T. Like Snowden, he didn't go to Harvard, pal around with Kissinger, or serve in the intelligence services. But he had real documents and direct testimony demonstrating that, at the behest of the NSA, AT&T was (and still is) making illegal copies of Internet traffic through key network junctures. This includes the juncture in a building on Folsom Street in San Francisco. After copying, searching is conducted through the full content of much of that information, especially messages going to and from abroad but including millions of Americans' communications. We now know that the government calls this program "UPSTREAM," and calls its searching through the actual content of messages "about" searching, but we didn't know these names in 2006. This was a big, new program with profound legal and constitutional implications. It deserved (and still deserves) serious public and judicial consideration.

So what happened? Mr. Klein went to the press before coming to EFF, but a Los Angeles Times story about his discoveries was famously spiked by Director of National Intelligence John Negroponte who intimidated now New York Times Executive Editor Dean Baquet out of running it. Finally, the New York Times did publish a story but the government just kept issuing carefully worded denials.

During this time Mr. Klein also came to EFF and we tried to do what Ellsberg did. We approached several U.S. senators about the information, including Mr. Klein's own Senator Dianne Feinstein. We were, to put it kindly, strung along. We never even got a meeting with a senator. EFF also filed a lawsuit against AT&T based on Mr. Klein's information, but we had to keep the actual evidence under seal for a long time, making it easy for the government to largely ignore us and, when pushed, dismiss Mark's claims as unfounded since he was just a lowly technician.(1)

We tried another part of the "Ellsberg" strategy. We took Mark to Washington to try to increase the chance of Congressional assistance as well as to try to bring more public attention to what his evidence revealed. We even managed to have a press briefing on Capitol Hill and a few meetings with staffers.

But we couldn't get a hearing on Mark's whistleblower information, couldn't keep the press on it, and couldn't penetrate the assumptions and elitist narrative about whistleblowers.(2)

But Mr. Klein was right, and the information he brought forward was important. Nevertheless, it took the "flood" of the Snowden revelations seven years later to move the ball forward in a significant way including the end of the telephone records program, greatly increased corporate use of encryption to protect users and even baby steps toward protecting foreigners abroad. But there's still never been a Congressional hearing focused on the Upstream program, much less one that let someone like Mr. Klein, Mr. Binney, Mr. Drake or Mr. Wiebe say what they know. We'll be pushing further when the authority the government now relies upon for the program, FISA Amendments Act Section 702, is up for renewal next December.

So thanks for the name check, Mr. Gladwell. We do appreciate it and would welcome a chance to give this Snowberg or the next an internship at EFF. But whistleblowers should be judged on whether they brought seriously improper and illegal government or corporate activities to light, not based on who they are or where they sit in an elite hierarchy. That doesn't mean that there can never be any potential consequences for whistleblowing. But making public something that people in a functioning democracy deserve to know should take a whistleblower firmly out of the reach of the Espionage Act or other serious felonies that the government put in its indictment against Mr. Snowden.

On that score, Mr. Snowden, along with Thomas Drake, William Binney, J. Kirk Wiebe, Chelsea Manning and Mark Klein, deserve to stand right beside Ellsberg.

Postscript

1. AT&T convinced the Court to keep the information sealed, claiming that it revealed trade secrets.

2. Then just as the courts started taking our claims against AT&T seriously, Congress stepped in, but not to support Mr. Klein. Instead, led by the intelligence committees, Congress passed the FISA Amendments Act, which (among other things) granted retroactive immunity to AT&T and the other telecommunications companies for their (still denied) complicity. This ultimately killed our first lawsuit, Hepting v. AT&T. Meanwhile, in our second lawsuit, Jewel v. NSA, the government has continued to strategically and secretly deny our claims about backbone surveillance, slowing the lawsuit down to a crawl.

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