Another round of editorials about how Snowden should be judged has set off some discussion threads that touched a nerve with me. I'm cross posting my response to a series of comments that included this observation:

The only people who didn't know what they learned from Snowden are IDIOTS who didn't WANT to know. The general information that he released was already widely-known by anyone who cared to know. The specifics that he released, pose a very serious threat to our national security, by revealing delicate intelligence information, the presence of which on the internet, makes us all LESS SAFE.

There is a significant difference between THINKING that something is true and KNOWING that it is true. Many people thought the NSA was collecting all phone records, particularly after the USA Today published a story to this effect in 2006, but the President denied it and the phone companies denied it. As I'm sure you know, DNI Clapper was asked this question under oath in a Senate hearing in 2013 and he denied it.

Some people took the POTUS and the phone companies at their word, particularly when this word was given as testimony in public hearings where it is supposed to be illegal to lie. People who had faith in the integrity of our domestic political process should not be cast as "IDIOTS." Furthermore, everyone who wished to challenge the Constitutionality of this program in a court of law was denied standing to do so because they could not prove that their records were being collected. Therefore, you can count the federal court system among the "IDIOTS" who took the executive at its word.

There is no public policy that authorizes the program. The statutory argument here is that when Congress authorized the collection of only those business records that were "relevant" to a foreign intel or terrorism investigation, they really meant to authorize the collection of all business records everywhere all the time because everything is relevant. Several prominent experts in this policy area expressed surprise at this interpretation, including Orin Kerr, Benjamin Wittes, and Robert Chesney.

So why are we being told that everyone who paid attention to this policy area knew that this had been authorized all along? That is a lie and it is just as dishonest as Clapper's statements under oath in the Senate.

This meta-data collection program is not some targeted operation that should be kept secret from the American people. This is a major, domestic public policy matter that is far beyond the scope of the sort of things that government secrecy ought to encompass.

The American people have a right to decide whether or not we want all of this meta-data collection to happen, and we were robbed of that right through dishonesty on the part of this country's leadership. Furthermore, the American people have a right to expect that our public policy process should operate with integrity, and that the President's representatives do not lie to us under oath in public hearings, and that if they should lie under oath, the American people have a right to expect that matter to be taken seriously. Unfortunately, none of that has happened, and this calls into question the validity of every assertion that the Government of the United States ever makes about any allegation that is made about it.

People are not just going to roll over and forget about all the lies here - the long term consequences of all of this are going to be significant.

Snowden's decision to leak the FISC order was completely justified due to DNI Clapper's perjury alone, and the statutory issues add even further justification. We don't even need to reach the Constitutional questions, but, lets talk about those.

Sure, the "mosaic" approach to interpreting the Fourth Amendment is a new perspective on how it should be interpreted, and there are reasonable people who do not yet embrace it. Thats way we're seeing a circuit split on this issue and its not clear where the Supreme Court will go on this. So lets talk about the First Amendment.

I have a RIGHT to Freedom of Association. My phone records are records of who I associate with. It is obvious that if the government is keeping records of who I associate with around for 5 years just in case they decide that I did something wrong, this might chill my exercise of my first amendment rights.

This gets even clearer when you realize that this legal discussion is relevant to Internet meta-data. Internet meta-data doesn't just tell you who I associate with, it tells you what I am reading. It is, again, clear that if the government is keeping records of everything that I read around for 5 years just in case they decide that I did something wrong, this might chill my exercise of my first amendment rights.

Judge Pauley erred in his reading of this issue by failing to see the distinction between this situation, where collection and retention of data about me is certain, and the situations considered by the Supreme Court in the past (such as Laird v. Tatum) where the collection of data was merely speculative.

In my mind, there is no question that meta-data surveillance raises First Amendment concerns and any program like this should be forced to survive strict scrutiny. Given the derth of evidence that this program has been effective or was necessary in the examples that have been provided, its hard to see how it would meet that criteria.

Snowden has leaked a lot of things. I think that some of the things that he has leaked, such as the technical details of hacking operations, damage US security without shedding light on any relevant public policy concerns. I'm not entirely sure what his motivations are. I am not filled with admiration of his heroics so much as I am filled with frustration regarding the failure of our public policy process.

However, it is obvious to me why some people would think that what he has done is heroic, and I don't think those people are "IDIOTS." If not for his actions, we would not be able to have the argument that we're having in court about these statutory and Constitutional issues, and the key is that we have a right to have that argument. In that sense, at least, Snowden has helped ensure the integrity of our political process where our elected leadership failed to do so.