Edward Snowden: Whistleblower or Traitor?

1371935280000-AP-NSA-Surveillance-Snowden-1306221711_4_3_rx404_c534x401Earlier this month, I learned that as a Verizon Wireless customer, my cell phone records, and those of family, may very well be sitting in some National Security Agency (NSA) analyst’s cubicle.

According to The Guardian, which first reported the story June 5, Verizon is under a court order to turn over on an “ongoing, daily basis,” information such as “the numbers of both parties on a call . . . location data, call duration, unique identifiers, and the time and duration of all calls,” and more.  However, no subscriber’s personal information or contents of a call are covered by the order.

Shortly after the story broke, Edward Snowden, a 29-year-old former NSA contractor, came forward as the informant. Time Magazine quotes Snowden as saying, “The public needs to decide whether these programs and policies are right or wrong.” He has since been charged with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.  Snowden may currently be in Moscow and is rumored to be heading to Ecuador to seek political asylum there.

Because the information that Verizon turns over is considered metadata and not communications, the NSA needs no warrant to access it. Even so, by putting together enough metadata, one can fairly easily put together a profile of who is calling whom, for how long, and from where.  While no actual content is turned over to the NSA, the breadth of this program—code named PRISM—should frighten any American because the information is handed over wholesale; no probable cause or suspicion of wrongdoing needed.  And, boom.  The NSA is keeping tabs on you.

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Addicted to the Internet?

Whoa, you like to think that you’re immune to the stuff, oh yeah
It’s closer to the truth to say you can’t get enough
You know you’re gonna have to face it, you’re addicted to [the Internet].

Robert Palmer, Addicted to Love (1986) (more recently covered by Florence & The Machine (2010))

This morning, I awoke and reached for my smartphone to turn off the alarm. Because I already had the phone in my hand, I checked the day’s weather (for both the Madison area, where I live, and Milwaukee, where I work). Then, of course, I had to check email, to see what had come in during the night. And, while I was at it, I took my turn in the eight concurrent games with three different people that I have going on Words with Friends. After that, I finally got out of bed.

According to an article by Tony Dokoupil in the July 16, 2012 issue of Newsweek, that kind of morning makes me just like more than one-third of smartphone users. We are the ones who check our phones before we even get out of bed. Really? Only one-third of us do that? 

Technology has allowed us to be continuously connected to a wider world, and too many of us are tethered to those portals.

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What’s in a “Like”?

A big part of why I am so intrigued by social media and employment law is because of the extent of information people are willing to share with others about themselves through these mediums. One way this can be accomplished is through the “like” feature on Facebook. Facebook describes the “like” feature as “a way to give positive feedback or to connect with things you care about on Facebook.” Once someone hits the “like” button, a caption to the content indicates his or her positive affirmation.

Consumer Reports (p. 28, June 2012) recently featured the extent to which people “like” things on Facebook. A national survey of active Facebook adults revealed that over the previous 12 months, 4.7 million “liked” a page pertaining to health conditions or treatments, 2.3 million “liked” a page regarding sexual orientation, 7.7 million “liked” a page relating to religious affiliation, and 1.6 million “liked” a page pertaining to a racial or ethnic affiliation. I raise these statistics with employers when I talk about social media because  these all relate to protected class statuses under the Wisconsin Fair Employment Act, Wis. Stat. § 111.31 et seq. Taking an adverse employment action after learning an individual liked such things as these may open the door to a charge of unlawful discrimination.

A recent decision out of the Eastern District of Virginia is bringing front and center questions concerning the significance of a “like” in a First Amendment context. In Bland  v. Roberts, 11CV0045 (E.D. Va. Apr. 24, 2012), several deputy sheriffs claimed they were unlawfully fired for supporting the sheriff’s election opponents in an election the incumbent sheriff ultimately won. Two of the plaintiffs claimed that the retaliation was due, in part, to the fact that they expressed support on the election opponent’s Facebook page. The court found the only evidence of a “statement of support” was through each individual “liking” the challenger’s Facebook page. The court found that a “like” was not sufficient speech to support the plaintiffs’ freedom of speech retaliation claim. The court explained:

Continue ReadingWhat’s in a “Like”?
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