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Opinion: Edward Snowden, the Defecting Whistleblower
Guest Post By: Mychal Wilson, Whistleblower and Entertainment Attorney at MychalWilsonEsq.com
Mr. Edward Snowden may have believed he was a hero “doing the right thing” while blowing the whistle on his military defense employer Booze Allen Hamilton and the National Security Agency (“NSA”). Currently, Mr. Snowden has now defected to Russia which has a history of being an even bigger “Big Brother” state than America. In reality, not only is the grass not greener in Russia, it is much colder as well.
Mr. Snowden became America’s most wanted and an enemy of the state by committing treason. Merriam-Webster defines “treason” as “the crime of trying to overthrow your country’s government or of helping your country’s enemies during war[.]” See www.meriam-webster.com, definition of “treason” (site checked September 24, 2013). Astonishingly, America has arguably been at war since September 11, 2011, and officially since Congress authorized use of military force in Iraq in 2002.
Under the USA Patriot Act of 2001, The 1917 Espionage Act, the Computer Fraud and Abuse Act, etc., it is America’s prolonged war(s) which have enabled the United States government to assert treason and criminally pursue Edward Snowden as a traitor.
One thing is certain: Edward Snowden should have retained legal counsel before blowing the whistle on his former employer Booze Allen Hamilton and the NSA.
First, under the False Claims Act, fraud against the United States government is actionable under the False Claims Act (31 U.S.C. §§ 3729–3733, also called the “Lincoln Law”). So, if Edward Snowden was the “original source” of any fraud that Booze Allen Hamilton had committed against the NSA (e.g.- Cross-Charging and/or Improper Cost Allocation), then he may have been legally protected coupled with being entitled to a 15% – 30% relators share of any recovery. Furthermore, under the False Claims Act, Edward Snowden may have also been protected against any retaliation by Booze Allen Hamilton (e.g. – termination of employment).
Second, any competent legal counsel would have advised Edward Snowden of any potential criminal acts he may be committing by blowing the whistle on the NSA. The obvious criminal acts include but are not limited to treason, extortion, and blackmail. And, here, the criminal act of treason applies.
Edward Snowden alleges that the United States government is the actual villain because it is abusing its power and violating our U.S. Constitution. Some would compare our present government to a modern day “Big Brother” state. While proponents of Edward Snowden may assert First Amendment and Fourth Amendment violations, those arguments will fail. Most notably, and notwithstanding the Patriot Act, et al., the Fourth Amendment to protect the people’s right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” is a very weak argument when applied to online communications such as emails.
Although we may own the hardware, passwords, etc., there really is not a “reasonable expectation of privacy” when third parties (e.g. – Internet Service providers/“ISPs”) are involved. In the United States v. Miller, the Supreme Court opined:
[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. United States v. Miller, 425 U.S. 435, 443 (1976)
In fact, there is an American legal principle called the “Third-Party Doctrine” that essentially holds that there is “no reasonable expectation of privacy” to citizens who voluntarily give information to third parties such as ISPs.
While having assisted various federal and state agencies as legal counsel on numerous Qui Tam “Whistleblower” cases, I can assure you that most citizens and their personal information can be located and tracked online. More specifically, there are social media technology companies that track social media data, citizens and their habits which are now an important part of intelligence and security measures. So, even our constitutional “right to privacy” has diminished. Unless, of course, you are a citizen living completely off the grid which is highly unlikely in today’s digital age.
Yes, the NRA may now contend that we really do have a tyrannical government to justify the “Right of the People to keep and Bear Arms” under our Second Amendment. So, there goes tighter gun control. But, in light of being at war for over twelve (12) years and the growth of both domestic and international terrorism, I will accept the NSA’s intrusive and expected conduct over the potential threat of an underwear bomber, suicide bomber and/or dirty bomb any day of the week.
And a final word to the wise: In the very near future, there will probably not be a “reasonable expectation of privacy” to the exclusive and personal information recorded on the new iPhone 5s “Fingerprint Scanner.”