As anticipated, the huge, monumental story about the National Security Agency collecting every piece of electronic communication generated, just in case, has given way to less lofty stories, even though nothing has changed and the government continues unabated to gather up our every byte and pixel.  No, it’s not because we are suddenly cool with the idea that the government is doing this, but because a shiny squirrel could be seen in our peripheral vision and distracted our attention.

The name of that shiny squirrel is Edward Snowden.  Whether one considers him a hero or ideological provocateur, he’s caught the public’s eye.

At Volokh Conspiracy, Orin Kerr raises some interesting question about this.

Whenever Edward Snowden is discussed, I invariably encounter the following response:

Edward Snowden is not the issue. You’re trying to distract people by changing the topic. The real issue is what Snowden disclosed about government surveillance, and anyone who talks about Snowden is not talking about the real issue.

I find this response puzzling. There are two stories here. On one hand, Snowden revealed documents showing how the government was implementing its national surveillance authorities. That’s a big story, and I blogged about it several times. But on the other hand, Snowden himself is a big story, too.

Orin is certainly allowed to be as fascinated as he wants to be with any story or issue that captures his fancy. I certainly wouldn’t begrudge him whatever stories/issues pique his interest. But to put it in terms of what is the real issue is to pose his question as a strawman.

There are big issues, overarching issues affecting the fundamental rights of 350 million people, and there are, well, not so big issues, concerning the tool used in the process of reaching the big issues. Snowden is a tool. It’s not that the issues surrounding Snowden aren’t real; indeed, they’re very real for Edward Snowden, for Glen Greenwald who was also a tool in the process, and for those pondering how best to escape if the government ever feels compelled to prosecute them for acting upon their ideological, maybe narcissistic, compulsions.  Of course Snowden involves issues that are real, and pretty fascinating from a law nerd perspective as well.

But merely being real isn’t sufficient to match the question of whether they are as fundamental, systemic and pervasive as the impact of the NSA’s collection of all data.  It’s like comparing theft by false pretenses to murder. Sure, both are crimes. No, they are not equivalences, either in significance, prevalence or moral condemnation.

What Snowden offers is a face, a discrete person to blame and capture our anger.  Americans are awfully lousy at keeping our focus on concepts. Heck, some people have a tough time recognizing ideas at all, and can only muster outrage when they have some physical manifestation they can point at and cry, “burn the witch.” 

But as Orin points out, there is a curious distinction militating against my big issue, puny issue, characterization:

Granted, what Snowden has revealed so far either appears to check out as legal and constitutional or at least was so approved by the federal judges on the FISA court (with too few facts known so far to be able to say much more to question that). So there isn’t quite a “scandal” there. But there are some interesting law nerd issues that I’ve blogged about a few times.

At the same time, there are really interesting legal issues with Snowden, too. Granted, what Snowden did is clearly illegal. Snowden has pretty much admitted to his conduct, so there isn’t much in the way of drama on the legal issues there.

To reduce this to an equation, NSA = legal and constitutional. Snowden = illegal. How then can something that’s legal and constitutional be a big issue when something that’s illegal be, well, less big?

This is where the disconnect between the lawyer mind and reality rears its ugly head. Lawyers, judges and especially lawprofs who are self-described “surveillance law nerds” fail to see what is clear to everybody not laboring under the burden of legal myopia. 

That the government over the years, going way back to when Congress enacted FISA, long before computers, smartphones, Youtube or Facebook were a twinkle in the public’s eye, and nobody, aside from a few of us criminal defense lawyer, gave it any thought, started down the path that led us to laws and constitutional interpretations that render what the NSA is doing lawful. At the time, few noticed. Fewer still cared. But the foundation was built.

So it’s lawful and constitutional? Because of laws created before our digital world existed, and then tweaked as we slid down the slippery slope? And we now find ourselves in a world without privacy, but it’s all okay because laws say so and the Supreme Court agrees?

So the public had a hard time figuring out where all this was going, and didn’t believe, whether it was intentionally blind or just ordinarily stupid, it would eventually reach where we are now. Granted, we let it happen.  But pointing to laws and judicial opinions to say, tough nuggies, this is the world you allowed to happen around you and you can’t complain about it now, isn’t an adequate response to this epiphany. 

For a long time, I’ve argued that the message of Katz, that we as a People want to have a reasonable expectation of privacy, and that the law has failed to keep pace with technology and put us at the mercy of the government. It may be lawful, but it’s now smacked us in the face that the law has failed to meet a basic expectations of a free people to be left alone, free from governmental intrusion into our every thought and utterance.

Oh wait, there’s a shiny squirrel. What was I saying?

Update:   Jonathan Turley published an op-ed in USA Today likening the Snowden prosecution to Animal Farm.

Of course, none of our politicians is nearly as open and honest as Squealer. There will be no sign proclaiming the different treatment of the governing and governed classes. They prefer the barnyard to return to its previously sleepy existence once the offender has been put away.

If one focuses on Snowden, then the Animal Farm analogy is apt. But if one focuses instead on the NSA surveillance, then the better analogy is Aldous Huxley’s Brave New World.  Think about it.