United States Files Civil Lawsuit Against Edward Snowden

If you take your camera out, and point it at something happening in the street adjoining your home, and plan to post the story to YouTube, Twitter, Instagram, Facebook, your own web page, send to your local television station, insert into a blog or print book, or have any other form of intent to publish, then for the purposes of exercising your rights, you are in that moment a journalist.

There are no special rights that Clark Kent enjoys as a staff reporter that Peter Parker cannot invoke as an independent freelance photographer.

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I believe that specifically, the NDAs in question have a clause requiring personnel who intend to publish books to allow the agency to perform a pre-print review, to ensure no accidental spillage of classified materials through publication. Due to the nature of the contracts, the sole arbiter of whether information is classified is the classifying authority, so even if something has been published internationally in a globally-recognized newspaper, and is now common knowledge to hundreds of thousands of people, the information is still classified until the authority declassifies it. Those subject to the NDAs are technically not even allowed to read that article in the newspaper, or that chapter of the book, unless they then immediately take steps to control the classified in it and report it to their security contact. Which is to say that you are supposed to wrap the newspaper or book up in an opaque cover and drop it off at your security office.

The actual security apparatus has evolved, but the legal framework is still very much from the 1950-1980 Cold War era, so if you do not do the patently ridiculous thing, you can be sued or prosecuted.

Snowden didn't give CIA, NSA, DIA, or whomever else he may have had NDAs with, the opportunity to edit his book before going to print, for obvious reasons, so he's in violation of the contracts. It is unlikely there is anything in there that has not already been published in newspapers. It seems like they're refusing to declassify information that can no longer seriously be considered secret, with the potential to cause harm to national interests, solely because as long as it remains classified, they can use the contracts to silence, suppress, or retaliate against the whistleblower.

You're right that we may never know what exactly Snowden took, that's always going to be the tough part about the public evaluating classified information cases. Sometimes you'll find other pieces of the puzzle years later if you're lucky.

Either way, you should take what senior intel officials say with a grain of salt, they're always going to be cagey and particular with language. But looking at the Snowden case there are a number of things that are red flags with his story.

Was the NSA performing illegal surveillance on Americans? Yes. Did Snowden expose information that had nothing to do with those programs? Even by his own admission yes. Did Snowden even read all of the documents he stole? No, again by his admission.

I don't think Snowden was a stone cold traitor, but I also think there are some things about his story that don't add up. The truth is probably somewhere in a gray area.

Snowden didn't read all of the documents he stole, instead he relied on journalists to responsible when redacting things. So that alone means he would have no way of knowing how much natsec damage he did. Not to mention the fact that often times classified leaks help adversaries figure out other classified information by filling in the picture.

As far as damage to national security, it's always going to be difficult to assess, but there's no way the Guardian or any media outlet can definitively claim there wasn't damage because they don't have the whole picture. In the case of SIGINT, if your adversaries learn your offensive capabilities they are going to develop countermeasures. If they learn that you've detected their spying activities, they are going to move to new ground. If they learn key things about your communications security, they will be better equipped to exploit them.

Just this week a story came out about how Russian intelligence services penetrated FBI communication systems and were able to eavesdrop on FBI counterintelligence efforts. These are the types of things that get compromised with leaks.

Ultimately it would be very difficult for Snowden to mount an effective whistleblower defense based on his actions. I can understand why he didn't try to report through oversight channels (see William Binney and Thomas Drake) but the fact that he didn't drastically weakens his case on that front. Then the fact that he stole and divulged materials which he had not even read means it would be harder claim that his leak was solely related to illegal spying.