The Lawyer Finishing What Snowden Started
WHY YOU SHOULD CARE
Because he’s David and the government is Goliath.
By Libby Coleman
One blue, one gray. In October 2012, 31-year-old Alex Abdo owned two suits; he chose the gray. It would be his first appearance before the Supreme Court, and just to make the stakes higher, the case was virtually impossible to crack.
In 2008, Congress authorized a secret court to permit government surveillance on foreign nationals without a showing of probable cause. Abdo and the lead ACLU lawyer on the case, Jameel Jaffer, asserted the surveillance was unconstitutional. The Catch-22? Because the lawyers couldn’t access records of searches and their subjects, the lawyers couldn’t prove their plaintiff had been surveilled. In February 2013, the Court dismissed the case in a 5-4 decision, with the majority writing that the claims “were based too much on speculation.”
Discouraging for sure, but Abdo found reason to take heart later, when he learned that a certain contractor for the NSA was watching from afar — and was poised to do something about it. In June, Edward Snowden and a trio of journalists started publishing reports about the extent of state-sponsored surveillance, and for many Americans, they came as a shocker: The reports showed that the NSA had access to data from Verizon, Google, Facebook and Apple, and that millions of people in America had been caught in the dragnet.
Coming soon to the list of items banned in federal buildings: https://t.co/hHsVOtqq59
— Edward Snowden (@Snowden) April 27, 2016
Finally, Abdo and the ACLU had their plaintiffs. Last year, Abdo won a landmark suit against the NSA’s call-records program, with a unanimous 2nd Circuit panel finding the program “an unprecedented contraction of the privacy of all Americans.”
Abdo’s work at the ACLU deals with surveillance, online anonymity and encryption litigation. It has special relevance in our age of cyber anxiety, in which — quite apart from Hillary Clinton’s email woes or Julian Assange’s threats of leaks — every day seems to bring news of some new leak or breach. Just this week, news broke that the FBI has arrested another NSA contractor, possibly for stealing secret information, and that Yahoo has been scanning everyone’s incoming mail at the behest of the U.S. government.
Amid the cyber chaos, Abdo proceeds from a simple principle: The government must notify users when it subpoenas their information. Otherwise, he reasons, the Fourth Amendment, which prohibits the government from unreasonable search, is basically void. To that end, Abdo has led the ACLU’s support of companies like Apple, which has resisted court orders to unlock an iPhone in a terrorism investigation, and Microsoft, which wants the government to notify users when it collects their data. The work is, of course, controversial, but Abdo has garnered respect on both sides. Stewart Baker, a sparring partner and former official in George W. Bush’s Department of Homeland Security, says Abdo is a rarity: “Not everybody can handle an open public debate and also argue in front of some of the smartest judges in the country.”
Plenty of civil rights lawyers have nursed dreams of justice crusading since they were children. Abdo? Not so much. He grew up in Dallas, the son of two Palestinian immigrants — Dad was a physician, Mom studied German and philosophy — and was a science and math nerd all the way. As a biology major at Yale, though, something shifted, thanks to a bioethics class. He learned about Agent Orange, an herbicide chemical. In the 1960s and 1970s, it was used in defoliation campaigns in Vietnam and Laos and caused terrible birth defects. Something about the story spoke to him, and he began thinking more seriously about how technological gains, theoretically amoral, could be used for evil ends. “[It] taught me to temper my technophilia,” he says. ”I still wonder at the possibilities that technology brings, but I fret, too, about its misuse.”
At court hearing, govt says it has compelled Apple to unlock at least 70 devices.
— Alex Abdo (@AlexanderAbdo) October 26, 2015
“He’s unusual in that he is a very talented legal thinker who also has a deep understanding of technology,” Jaffer says. “I think if he hadn’t become a lawyer, he probably would have become a technologist or a computer scientist.” (Case in point: Abdo coded and just launched a public transit app, WhatTrain, that lets New Yorkers find the nearest departing subways. Since it’s an ACLU lawyer’s app, it gives you information without collecting much of yours.)
As a student at Harvard Law School, Abdo was struck by the notion that the men who wrote the Constitution were so aggrieved by government intrusion that it became a cause of rebellion; they enshrined prohibitions against it in the Bill of Rights. Freedom and security weren’t opposed, Abdo says, quoting Benjamin Franklin on the point: “‘Those who surrender freedom for security will not have, nor do they deserve, either one.’” He landed at the ACLU for a summer internship back in 2005, and while few of the cases he worked on back then remain active, there are exceptions. One involves a 12-year-old Freedom of Information Act suit against the government to release thousands of photographs documenting prisoner abuse in Iraq and Afghanistan during the George W. Bush administration. With Ben Wizner, Snowden’s lawyer, Abdo continues working on a high-profile torture case, in which a U.S. citizen was allegedly tortured by U.S. servicemen on U.S. soil.
Indeed, three-odd years after the leaks began, Snowden is having a kind of moment. There’s the Hollywood feature, starring Joseph Gordon-Levitt, and a number of big-time newspaper staff editorials urging President Obama to pardon the whistleblower. A pardon in this administration, or the next, looks unlikely. But while Snowden is exiled in Russia, Abdo and others are trying to finish what he started.