Snowden Was Right

I have never doubted that Snowden is a true and real hero of our times. Risking his life, freedom and career, this U.S. secret services employee revealed the existence of a monstrous spying plan and the violation of millions of people’s privacy both in the U.S. and the whole world, arousing angry reactions from many governments — not our Italian one, obviously — that are either allied or maintain cordial relations with Washington but do not accept that snooping was going on in their internal communications.

Finally, the New York Court of Appeals has taken an interesting position on a central aspect of such massive spying activity. We are talking about a decision that was made May 7, 2015, under the appeal of various U.S. civil rights organizations, among them the American Civil Liberties Union, against a slew of high-ranking secret services employees, the secretary of defense, the FBI director and the U.S. attorney general.

Annulling the previous decision made by the New York District Court, the ruling affirms that the collection of metadata by organizations in charge of security exceeds the range of the authorization given by Congress in Section 215 of the Patriot Act. The court argued that the fact that the metadata did not include the contents of the conversations does not negate concerns related to the violation of privacy.

The key point in the New York Court of Appeals’ reasoning regards the fact that the collected metadata do not appear aimed at any specific investigation, as required by Sec. 215. The court affirms that the concept of relevance cannot be interpreted, as the government would want, in terms that are generic enough to be able to maintain that each piece of data collected could be relevant to a specific investigation or become so at another time. Such an affirmation appears reinforced because the authorization contained in Sec. 215 expressly excludes the so-called “threat assessments,” a less penetrating and more generic investigation than the FBI can carry out on the basis of the guidelines that regulate its activity. We need to hope that the U.S. Congress, taking a cue from this decision, puts an end to this kind of illegal activity.

The discussion can be applied to every form of long distance communication, whether on the phone or online, as they are, after all, ever more interwoven due to increasing and ongoing technological developments. As I write in my book, edited with Paola Marsocci and Marina Petrangelo, “The Internet as a Space for Political Participation: A Legal Perspective,” which we will present in Rome on July 22, “The protection of web users’ privacy and their defense against interference from governments or workplaces should constitute a precise imperative for the international community,” a community that has after all had the means to express itself many times on the topic in the United Nations.

After all, the technological developments underway are such that they can be directed toward the growth of democracy or toward its reduction. As Snowden observed in an interview with L’Espresso in June of 2014, “The Internet is an extraordinary magnifier of power, but that applies to both individuals and states. Magnifying the already massive powers of well-organized super states has narrowed our liberties in a significant way, because they already had so much more power than any given individual. However, when you consider the theoretical aggregated power of the civil body of the Internet standing in solidarity without regard to national borders – a body that previously never existed in history- hope comes into view. States are mighty, but the united body of its public is stronger, and the potential output of an organized but borderless global technical community makes even the most powerful state seem lonely and vulnerable.”