Whistleblowing and the Snowden Case

1.1 What did Snowden make public in 2013?

In June 2013, Edward Snowden released classified material on top-secret National Security Agency (NSA) data collection programmes. The House report on the USA FREEDOM Act calls him a former defense contractor and CIA employee.

The UPSC 2018 paper describes him as a former CIA systems administrator. He argued that he had a moral obligation to act.

1.2 Which programme became the centre of the story?

It was the bulk collection of telephone metadata under Section 215 of the USA PATRIOT Act. On 5 June 2013 it was reported that the Foreign Intelligence Surveillance Court had granted an FBI order under section 215 on 25 April 2013.

Section 215 lets the government ask a court to order anyone to hand over records. The records must be relevant to a foreign intelligence investigation. Since 2006, such orders had been used to get large amounts of telephone metadata. Metadata leaves out the audio of calls.

1.3 How big was the leak, according to the House Intelligence Committee?

The Committee says Snowden removed more than 1.5 million classified documents from secure NSA networks. It says he fled to Russia on 23 June 2013 and has remained there.

The Committee calls it the largest and most damaging public release of classified information in US intelligence history. It also says most documents have no link to privacy or civil liberties. Treat these as the Committee’s findings, not court findings.

1.4 What is the usual mistake?

Students treat every claim about the leak as settled fact. Keep the sources apart. The Committee’s findings are one voice. Snowden’s own argument is another. The courts and Congress spoke about the programme itself.

2.1 What did the Second Circuit decide?

On 7 May 2015, the Second Circuit decided ACLU v. Clapper. It held that the bulk phone metadata programme was not allowed by Section 215.

The court declined to read the relevance standard of Section 215 as allowing broad, nationwide collection of telephone metadata.

2.2 What did the USA FREEDOM Act do?

It bans bulk collection of records under Section 215. It also covers the Pen Register and Trap and Trace statute and National Security Letters. And it creates a new programme for targeted collection of telephone metadata.

It was signed into law on 2 June 2015. The Congressional Research Service says its principal focus was bulk collection of telephone metadata under Section 215.

2.3 Did Section 702 change too?

Yes. Public Law 118-49 of 20 April 2024 is the Reforming Intelligence and Securing America Act. It amends subsection (f) of section 702 to limit the FBI personnel who may allow queries about United States persons.

2.4 What is the usual mistake?

Students say the FREEDOM Act ended surveillance. It did not. It stopped bulk collection under Section 215 and created a targeted programme in its place.

3.1 Does the House Committee call Snowden a whistleblower?

No. The Committee says he did not use whistleblower procedures under law or regulation to raise his objections. So it says he is not considered a whistleblower under current law.

3.2 What did the Committee find about his concerns?

It found no evidence that Snowden took any official step to voice concerns about US intelligence activities. It says it often gets disclosures from intelligence community contractors under a 1998 whistleblower protection Act.

The Committee adds that he could have made a disclosure to it. It says he did not.

3.3 What was Snowden's own argument?

He said he had a moral obligation to act. The UPSC 2018 paper reports his claimed duty to tell the public what is done in their name.

3.4 How can both views be true?

They answer different questions. This is our own reading. The Committee asks about method: did he use the lawful routes? The courts and Congress asked about the programme: was bulk collection allowed?

So one answer can be no and the other can be yes.

4.1 What does the UN anti-corruption convention protect?

It asks each State to consider protecting a person who reports in good faith and on reasonable grounds. The report must go to the competent authorities. It must be about offences the Convention covers. This is Article 33.

4.2 What does India's 2014 Act require?

It lets any public servant or other person, including an NGO, make a public interest disclosure before the Competent Authority. Every disclosure must be made in good faith.

4.3 Does the Indian Act act on anonymous complaints?

No. The Act says no action is taken on a disclosure that does not indicate the identity of the complainant.

4.4 Which tests can you pull out of these texts?

Here is our own checklist. Each row comes from the texts above.

The checklist is our own summary of the cited texts.

4.5 What is the usual mistake?

Students think a good motive is enough. The texts ask for more. The report must go to the competent authority, in good faith, on reasonable grounds.

5.1 Why did India issue a whistleblower resolution in 2004?

It did so because Satyendra Dubey was murdered. He was Project Director at the National Highways Authority of India in Koderma. He was killed in Gaya on 27 November 2003 for fighting corruption in the Golden Quadrilateral project.

A Supreme Court writ petition followed, No. 539/2003. The Government notified the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, dated 21 April 2004.

5.2 What did Dubey's case show about protection?

It showed that identity must be guarded. The IIPA Digest says he asked the authorities to keep his identity secret. His representation was forwarded to various departments without masking his identity.

5.3 What does the PIDPI Resolution do?

It gave the Central Vigilance Commission (CVC) the power to act on complaints from whistle-blowers. The identity of the complainant is not revealed unless the complainant disclosed it.

5.4 What did Parliament add in 2014?

It added a statute. The Whistle Blowers Protection Act is No. 17 of 2014 and is dated 9 May 2014. It sets up a mechanism to receive complaints of corruption or wilful misuse of power against public servants, with safeguards against victimisation.

The Bill was introduced in the Lok Sabha on 26 August 2010. The Lok Sabha passed it on 27 December 2011 and the Rajya Sabha on 21 February 2014. The Act comes into force on a date the Central Government notifies.

Rows are from the PIDPI note and the text of the Act.

5.5 What gaps did PRS point out?

PRS said the Bill did not provide any penalty for victimising a complainant. It also said the power of the CVC is limited to making recommendations. These are PRS’s points on the 2011 Bill.

5.6 What is the usual mistake?

Students call the PIDPI Resolution a law passed by Parliament. It is a Government resolution. The Act came ten years later.

6.1 What does consequentialism ask?

It asks about outcomes. The Stanford Encyclopedia says consequentialism is the view that normative properties depend only on consequences.

Our own use: weigh what an informed public and any reform gained against what the Committee says was lost. Both lists need evidence.

6.2 What does Kant's test ask?

It asks whether you could will your rule to be a universal law. The Stanford Encyclopedia gives Kant’s wording of this principle.

Our own use: could every insider act on the rule ‘leak when I judge a programme wrong’? Then ask whether a rule of silence could also stand as a universal rule.

6.3 What does virtue ethics ask?

It asks about character. The Stanford Encyclopedia says it emphasises the virtues, or moral character, rather than duties or rules or consequences.

Our own use: which virtues fit here? Courage and honesty point one way. Prudence and loyalty to lawful channels point another.

6.4 How do the lenses compare?

Each lens asks a different question. The table sets them side by side.

The questions are our own summary of the Stanford Encyclopedia entries.

6.5 What is the usual mistake?

Students pick one lens and stop. The exam asks you to weigh competing values. Use each lens to test the others.

7.1 Which values collide in this case?

Several do, and each has a real claim. This is our own list.

• Transparency: citizens should know what is done in their name.
• Rule of law: secrecy rules bind the person who signed up to them.
• Privacy: the programme touched the records of ordinary people.
• National security: the Committee says the harm to security was large.
• Loyalty: to the employer, and to the Constitution and the public.

7.2 How should a civil servant act?

Start with the lawful channel. This is our own reading of the sources. In India that means the CVC under the PIDPI Resolution, and the Competent Authority under the 2014 Act once the Act is in force.

The Committee’s point is the same in the US setting. It says lawful routes existed and Snowden did not use them.

7.3 How do you write a balanced answer?

Name the values, weigh them, and give a view. Here is our own plan. State what was exposed and what was risked. Test the act on method and on programme. Use two lenses. Close with a clear stand.

7.4 What is the usual mistake?

Students write about Snowden and forget the principle. The marks are for the ethical argument. Use the case as evidence for it.

8.1 What did UPSC ask in 2018?

Here is our own plan for the answer. Split it in three. First, state the values in conflict. Second, test method and programme separately. Third, weigh them with two lenses and give a clear stand.

8.2 Which facts should you keep?

• 2 June 2015: USA FREEDOM Act signed.
• 7 May 2015: Second Circuit, ACLU v. Clapper.
• 21 April 2004: PIDPI Resolution. 9 May 2014: India’s Act, No. 17 of 2014.
• 27 November 2003: Satyendra Dubey murdered.
• 1.5 million: the House Committee’s document figure.