MEDC 4100: EDWARD SNOWDEN VS.

MEDIA LAWS 1

MEDC 4100 Research Paper: Edward Snowden, Pentagon vs. Media Laws

Isidora Colic

Webster Vienna Private University

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Leaking of classified information attracts a lot of attention from different parties

because it causes a threat to the national security. However, individuals who leak the

documents from the government agencies often have the right intentions and take adequate

measure to ensure that the data that reaches the public via the media serves their purpose

without subjecting the country to the risk of attacks. In most cases, the aim of leaking the

documents is to protect certain rights or push the government to avoid unethical practices.

The case studies of Edward Snowden and the Pentagon Paper are good examples of the

leakage that was intended to reveal unethical programs carried out by the government

agencies (Reitman, 2013). The documents were leaked through the media. This paper will

discuss the coverage of the issue of leakage of classified documents as well as the media

laws. The paper will focus on the history, applicable laws, background, and views of different

courts on the issue.

History and Background

The issue of Edward Snowden involved the release of the classified information about

the spy program implemented by the U.S. Snowden was hired as a contractor by the Central

Intelligence Agency (CIA). The scandal broke in June 2013 after the Guardian newspaper

published a report indicating that the U.S. National Security Agency (NSA) was gathering

information about telephone records, where tens of millions of Americans were targeted

(BBC, 2014). The report attracted the public attention because it pertained to protection of

privacy of telephone users. It was also reported that the U.S. government managed to tap

directly into servers of several internet companies, including the Facebook, Yahoo, Google,

and Microsoft. These pieces of information were supplied by Snowden to the media

reporters.

The idea of releasing NSA files started developing in the year 2007 when Snowden

was posted to the CIA’s station based in Geneva (Reitman, 2013). Snowden worked as a
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technician. However, he made the first contact with the Guardian journalist, Glenn

Greenwald, a year before the first report was published. It was during this contact when

Snowden disclosed that he was in possession of sensitive documents that he wished to share.

He also contacted a documentary filmmaker, Laura Poitras, where he started supplying the

two journalists with the documents after fulfilling his demands, such as the acquisition of

encrypted email addresses on April 2013 (Maass, 2013). The beginning of massive release of

the documents was marked by Snowden’s statement that the U.S. government could no

longer be able to hide its secret program.

Snowden was aware of the fact that the government would look for him once the

documents started being published. He flew to Hong Kong in May 2013 (Greenwald,

MacAskill & Poitras, 2013). Most of the documents were published by different media

houses across the world within a period of a few months. It is estimated that he was able to

release over 200,000 NSA documents (Hosenball, 2013). The major countries that were

targeted include the U.S., Norway, Germany, Spain, Brazil, Australia, and France, among

others. Snowden also travelled to other countries (such as Russia) where he met with different

media organizations (including WikiLealk) and individual journalists to supply them with

documents for publication.

Formal charges were filed against Snowden on June 14, 2013 by the U.S. prosecutors,

where he was charged with two counts of communication of classified intelligence and the

national defense information to persons who were not authorized to access it (Finn &

Horwitz, 2013). Another significant charge included the theft of property belonging to the

government, which referred to the NSA documents. He then got an asylum in Russia, which

helped him avoid returning to the U.S. to face the formal charges.

There are mixed reactions towards the role played by the press in covering the key

issues raised by Snowden. In overall, the press provided Snowden with a platform that helped
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him achieve the goal of revealing the secret surveillance by the U.S. government to members

of the public. It took the courage and the support of numerous media companies (such as Der

Spiegel, The Guardia, O Globo, The Washington Post, Le Monde, The New York Times, and

NBC, among others) to publish the documents and let the public know about the surveillance

(Espasito, Cole & Schone, 2014). However, Snowden criticized the press claiming that it

focused more on him as opposed to issues that he intended to reveal to the world. Most of the

journalist focused on his efforts to get an asylum and charges pressed against him.

Nevertheless, the manner in which the press sparked the public debate was encouraging.

Snowden received the public support, but not at the same extent as Daniel Ellsberg

who released the Pentagon papers in 1971 to reveal the secrets that the government hid from

the public regarding the war in Vietnam (Susca, 2017). Daniel’s decision was received

positively by the majority of the members of the public. It was reported that Americans got an

opportunity to understand that the politicians (including the president) lie (Susca, 2017). This

idea created a perception among members of the public that news media serve as the conduit

between the citizens and the powerful politicians.

On the contrary, the public opinion about the action taken by Snowden suggests that

he did not receive an equal level of support as Ellsberg. These findings have shown that over

55 % of the citizens believe that Snowden caused more harm than good (Susca, 2017). These

results indicate that the modern society does not support leaking of the security or classified

information that gave a negative image of the state. Therefore, the Snowden and Ellsberg did

the same thing, but the public perception about their actions was different. This can be

attributed to differences in time when the revelations were made.

Applicable Laws

The charges that were brought against Snowden were based on several laws. The

major one that the government claimed that it was violated was the Espionage Act. It was
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claimed that Snowden’s actions violated Sections 798 (a) (3) as well as 793 (d) of the

Espionage Act (Wells, 2013). The crimes defined in the two sections carry an imprisonment

term of up to thirty years. Section 798 (a) (3) makes it illegal for anyone to communicate

classified information to people who are unauthorized to receive it intentionally. It also

prohibits anyone from making the use of the classified information to benefit the foreign

nation or the purposes other than to the interests of the United States. Section 793 (d), on the

other hand, makes it illegal for anyone to communicate any national defense information to

persons who have no authority to receive it intentionally, if such a decision is likely to hurt

the country or provide assistance to some foreign nation.

The aforementioned sections support the government’s arguments. However, the First

Amendment can serve as the defense for Snowden’s actions. This amendment prohibits the

Congress from making laws that limit certain rights such as the freedom of press and speech

(Legal Information Institute, n.d.). It also permits the citizens to petition the government with

the objective of pressuring it to redress their grievances. Based on the provisions of this

amendment, it will be difficult to prosecute the media houses that published the classified

documents or Snowden for calling upon the government to redress unethical practices

involving the secret surveillance.

Other applicable laws include the legislations that regulate the media. The current

media laws emphasize on the idea of access to information and the freedom of speech. The

Freedom of speech, which protects the media houses and journalists who need to inform the

public without fear, is protected by the First Amendment of the constitution. However, the

right of the citizens to access federal government records is provided by the Freedom of

Information Act (FOIA) (HG Legal Resources, n.d.). This legislation holds that the public

should be allowed to access the government records pertaining to its operations. The
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legislation can be used in defense of Snowden and the media organizations that facilitated the

dissemination of records.

Background about the Current Issue

The issue of publication of classified document involved several parties or the

stakeholders. The first stakeholder is Snowden, who was at the center of the scandal.

Snowden sacrificed his freedom and the right to live in the U.S. in order to make significant

revelations regarding the surveillance programs carried out by the NSA (Reitman, 2013). The

interest of Snowden in the issue was to bring the fact that the government engaged in

unethical practices of gathering telephone records and monitored the internet users to the

public attention.

The second stakeholder is the government of the U.S. as well as its relevant agencies,

such as the NSA. The government was accused of engaging in unethical practices that

violated the rights of the citizens, especially the consumers of the modern technology

(including the telephone and the internet) to enjoy privacy. The interest of the government in

the whole issue was to protect the publication of the information that it believed was

classified and could subject the country to different security threats. This idea is confirmed by

the charges that it pressed against the main stakeholder, who is Snowden (Reitman, 2013).

The relevant agencies needed to justify their programs and ensure that the information does

not reach the public.

The third stakeholder is the media. Snowden relied on the journalists to publicize the

documents. By supporting Snowden in the publishing the classified information, the media

was also subjected to the risk of facing legal consequences. The interest that motivated the

participation of the media in the issue was the desire to play a role in pressing the government

to regress the unethical practices that violated the privacy of the technology users.
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The fourth stakeholder is comprised of the members of the public. The issue was

initiated with the objective of helping the members of the public whose rights were violated

when the government secretly taped into the internet and accessed the telephone records

(Reitman, 2013). The interest of the members of the public was to have privacy of users of

the technology protected from unethical government agencies.

The issue has not been resolved so far. Snowden is still in exile in Russia (Hosenball,

2013). He remains wanted by the U.S. prosecutors to face the aforementioned charges.

Although the issue enhanced the public awareness about the unethical practices in which the

NSA engaged, people are still powerless and they may not know whether their telephone data

is being tapped or not. Therefore, the issue has not brought any significant solution.

The main issues raised include the national security and the right to privacy. The key

intention of the revelations was to protect unethical access to data by NSA (Hosenball, 2013).

However, the government’s claim that the data was classified suggests that the intention of

the surveillance was to enhance the national security.

Application of the Law and Views of the Court

Currently, Snowden has not been presented before the court to allow the judges to

make rulings on the charges pressed against him. This suggests that there are no exiting case

laws that pertain to the U.S. government vs. Snowden. However, there are several cases that

are similar to what Snowden is facing and the views given by the judges are being used to

debate about the possible fate for Snowden. For example, the case of Klayman v. Obama

involved the same issue of collection of metadata and similar stakeholders, including the

NSA and the public (Nakashima & Marimow, 2013). From the views of the courts, the idea

of gathering telephone metadata is unconstitutional. The ruling was made in the wake of the

leaks made by Snowden. This decision has been used to argue that it vindicated Snowden

since the underlying issues in the two cases are the same.
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The main law applied in the case is Section 215 of the Patriot Act, where it was held

that the legislation does not authorize the NSA to embark on the collection of bulk of

telephone call records. This section allows the government to gather tangible items (such as

books, documents, and records) when it is believed that they can provide evidence against a

foreigner (Mann, 2014). This suggests that the law applied in the case does not support the

gathering of telephone call records from the members of the public. The same view was

supported by two different courts, including the U.S. District Court for the District of

Columbia in the Klayman v. Obama and the U.S. Court of Appeal for the Second Circuit in

the ACLU v. Clapper case. Judges in both courts favored Snowden’s line of thought and the

possible defense, in case he is taken to court.

Blower versus a Traitor

The revelations made by Snowden have established two camps, with one arguing that

he was a genuine whistleblower. The second camp held that he was a traitor. The stakeholders

who argue that he should be regarded as a traitor hold that the information that could be used

by terrorist to harm the Americans or the country’s democracy was made public (Opt, 2015).

These are individuals and groups that are convinced that the government needs the metadata

in order to guarantee Americans adequate security.

However, there is a lot of evidence to support an argument that Snowden filtered the

documents carefully before releasing them to the journalists of the media houses, which

ensured that the information reaching the public could not cause a security threat. For

example, it has been reported that Snowden selected the documents to release carefully,

which demonstrated a conscious decision to withhold those that could probably cause harm

(Vleet, 2017). The focus was to release documents that could simply demonstrate that the

NSA collected telephone records and gained access to the internet to monitor its users. This

line of thought leads to an argument that Snowden was more of a whistleblower than a traitor.
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Need For the Information by the U.S. Citizenry

The U.S. is regarded as one of the strongest democracies in the word. The idea of

whether the U.S. citizenry needed the information that was released is based on the impact

that the secret government’s surveillance had on democracy. It has been reported that the

terrorist attack that took place on September 11, 2001 shifted the focus of the government

towards the national security, which required an increase in surveillance, a decrease in the

freedom of speech, and the right to enjoy privacy (Opt, 2015). These are detrimental effects

that are more likely to hurt the democracy than what Snowden did. The collection of the data

exceeded the authority of the government agency and contravened the First as well as the

Fourth Amendments that define the fundamental freedoms that the citizens should enjoy.

The citizens needed the information that Snowden supplied to them in order to make

informed judgments on whether the actions of the NSA were right or wrong. This was

accomplished by enhancing the public awareness about the surveillance. With this

information, citizens got the power to determine whether the NSA’s surveillance threatened

or promoted the key foundations of the country’s democracy.

National Security Threat

Snowden’s leaks could not affect the national security directly. Individuals who claim

that the documents threatened the security rely on the wrong assumption that he took millions

of documents and then dumped them online. However, there is sufficient evidence to show

that Snowden released zero documents (Timm, 2016). On the contrary, he asked for the help

the experienced journalists with the knowledge of the national security to review each

document and the public those that were in the public interest only. Timm (2016) held that the

national security reporters working with the news outlets that were respected were given the

documents.
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It was estimated that Snowden was able to copy more than 1.5 million documents

(Timm, 2016), but only 200,000 of them were released (Hosenball, 2013). These statistics

show that only a small percentage of the documents in the hands of Snowden reached the

public. Documents that had the potential to threaten the national security were concealed.

More importantly, there are reports showing that the journalists consulted by Snowden

allowed the government to make objections to the leaking of files based on the security

concerns (Timm, 2016). The effectiveness of the measures taken to select the documents that

could be released is based on the fact that there are no significant security incidents that can

be directly linked to the leaked information.

Conclusion

The leakage of the information that the government claimed was classified by

Snowden and Ellsberg addressed the unethical practices by the public agencies, but it did not

affect the national security. Unlike the cases of corruption where the aspect of whistle

blowing comes out clearly, the publication of classified data raises a lot of concerns since the

government agencies support their arguments by claiming that their objective is to enhance

the national security. This was the case when Snowden leaked files intended to enhance the

public awareness about the secret access of its telephone records by the government agencies,

especially the NSA. Although the government has been able to make a convincing argument

that the leaked files classified, the available evidence shows that only a small proportion of

the documents that Snowden copied from SNA reached the media. This is a clear

confirmation that the documents were assessed before publication to determine the possible

impact that they could have on the national security. Therefore, Snowden and Ellsberg

achieved their goal of enhancing the public awareness regarding the unethical practices by

the government security agencies.

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References

BBC (2014). Edward Snowden: leads that exposed U.S. spy programme. Retrieved from

https://www.bbc.com/news/world-us-canada-23123964

Espasito, R., Cole, M., & Schone, M. (2014). Snowden docs reveal British spies snooped on

YouTube and Facebook. Retrieved from

http://investigations.nbcnews.com/_news/2014/01/27/22469304-snowden-docs-

reveal-british-spies-snooped-on-youtube-and-facebook

Finn, P. & Horwitz, S. (2013). U.S. charges Snowden with espionage. Retrieved from

https://www.washingtonpost.com/world/national-security/us-charges-snowden-with-

espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story.html?

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Greenwald, G., MacAskill, E., & Poitras, L. (2013). Edward Snowden: the whistleblower

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https://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-

whistleblower-surveillance

HG Legal Resources (n.d.). Media law. Retrieved from https://www.hg.org/media.html

Hosenball, M. (2013). NSA chief says Snowden leaked up to 200,000 secret documents.

Retrieved from https://www.reuters.com/article/us-usa-security-nsa/nsa-chief-says-

snowden-leaked-up-to-200000-secret-documents-idUSBRE9AD19B20131114

Legal Information Institute (n.d.). First Amendment. Retrieved from

https://www.law.cornell.edu/constitution/first_amendment

Maass, P. (2013). How Laura Poitras helped Snowden spill his secrets. Retrieved from

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Mann, F. (2014). Fact sheet: Section 215 of the USA Patriot Act. Retrieved from

https://www.csis.org/analysis/fact-sheet-section-215-usa-patriot-act
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Nakashima, E. & Marimow, E. (2013). Judge: NSA’s collecting of phone records is probably

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%E2%80%94what%E2%80%99s-name

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who-leaked-the-secrets-104970/

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papers-to-trump-how-the-government-gained-the-upper-hand-against-leakers-79159

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