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[extract] In 2013, Edward Snowden revealed to the public that the U.S. National Security Agency (NSA) was operating a massive, secret, cybersurveillance operation, thereby touching off a national debate regarding the permissibility and desirability of the NSA program. In the ensuing years, both Congress and the American public debated fundamental issues regarding the relationship between the citizen and the government. Entwined up in these debates were issues relating to national security, especially the need to detect and apprehend potential terrorists, against the citizenry's interest in privacy against governmental surveillance and intrusion.Now that five years have passed since the Snowden disclosures, it is appropriate to reflect on how these societal debates have played out. In the interim, much has happened. In addition to the congressional and societal debates regarding whether government should be conducting such an operation, there have been efforts to litigate regarding the permissibility of that program. Further, the U.S. Congress has voted twice on the extent to which governmental cyber-surveillance should be allowed to continue. This article analyzes how Congress and the American people have responded to the Snowden revelations.

[extract] Communications technologies have evolved dramatically over the centuries. Before Johannes Gutenberg's invention of the printing press in the fifteenth century, people communicated primarily through oral or hand-written means; processes that were slow and not conducive to mass communication. The Gutenberg printing press enabled printers to create multiple copies of documents, and led to the widespread dissemination of ideas and information. Ultimately, the press contributed to dramatic societal transformations, including the Renaissance, the Scientific Revolution, and the Protestant Reformation. After Gutenberg's invention, communications technologies remained relatively stagnant for many centuries until electricity was harnessed in the nineteenth century. Electricity had an equally profound impact on communication because it made it possible for information to move much more quickly than people could move, and led to an explosion of new technologies, including the telegraph, radio, television, and eventually satellite communications and the internet.Despite revolutionary advances in speech technologies, mass communication was tightly controlled for centuries. Throughout history, governments have tried to restrict or control communication through tactics such as the imposition of prior restraints, including content licensing, as well as through criminal prosecutions for seditious libel, Even when the government was not censoring or repressing speech, not uncommonly private individuals exercised control over the means of communication. Since most speech technologies were expensive to own and operate, not everyone could own or operate the means of communication. Even Benjamin Franklin, who was famous as a printer, among other things, struggled for a long time to acquire the means to purchase a printing press. Because of their cost, most communication technologies (including the printing press, telegraph, radio, television and satellites) were owned by a small number of rich people who controlled access to those technologies. As a result, advances in speech technology did not necessarily make it possible for ordinary people to engage in mass communication. Media moguls could favor the stories and political positions that they preferred.

When he was elected in 2008, President Barack Obama promised that his administration would be more open and transparent than any previous administration. His so-called "open government initiative" involved a pledge to develop better data release technology (to facilitate the communication of information), make more information available to the public through federal Freedom of Information Act (FOIA), and create an enabling policy framework for open government.Of course, the Obama open government initiative was not the government's first foray into the realm of openness or transparency. FOIA, enacted in 1966, the Federal Advisory Committee Act (FACA) enacted in 1972, and the Government in the Sunshine Act enacted in 1976, all involved governmental efforts at openness and transparency. Throughout all of these reform efforts, there has been tension between the public' interest in obtaining information regarding the functioning of government, and the government's desire to preserve the secrecy of its operations. Few doubt that the government has a legitimate interest in withholding certain types of information (e.g., state secrets or information vital to foreign relations). Indeed, the United States Constitution explicitly protects certain types of information, and the United States Supreme Court has affirmed the need for secrecy and confidentiality in certain contexts. On the other hand, in a democratic system, in which the people must vote on issues and candidates, openness and transparency help voters obtain the information necessary to make informed decisions. President Obama's initiative was premised on idea that prior statutes had not gone far enough towards openness or transparency, and sought to alter the balance away from secrecy and towards disclosure.

Governmental openness Governmental openness and transparency is inextricably intertwined with freedom of expression. In order to engage in scrutinize government, the people must have access to information regarding the functioning of government. As the U.S. Supreme Court has noted, "It is inherent in the nature of the political process that voters must be free to obtain information from divers sources in order to determine how to cast their votes". As one commentator noted, "Citizens need to understand what their government is doing in their name."

[extract] Governmental openness and transparency are indispensable elements of modern democratic societies. Of course, during the medieval period, when monarchy was the dominant form of government in Europe, and some monarchies claimed to exercise power based on "Divine Right" – suggesting that kings were placed on their thrones by God, were divinely inspired and guided, and were carrying out God's will through their actions – concepts like openness, transparency, free speech and democratic accountability had no function. After all, why would society allow common people to criticize what God has done, or allow them to rebuke the monarch for carrying out God's choices and actions? However, with the dawn of the Enlightenment, an entirely new understanding of government and governmental authority began to emerge. In the United States, this new understanding was reflected in the U.S. Declaration of Independence which implicitly rejected the concept of Divine Right, and declared the primacy of democratic principles: "Governments are instituted among Men, deriving their just powers from the consent of the governed."

itizen participation in government has relatively recent roots. For centuries, Europe was dominated by monarchs who offered ordinary citizens limited opportunities to influence, governmental decision-making. Indeed, some monarchs claimed to have been placed on their thrones by God, and also claimed that their actions and decrees were manifestations of God's will. Of course, if Kings are "divinely inspired," and carrying out God's will through their actions, it is difficult to argue that ordinary people can or should be allowed to question or criticize what they have done, or what God has purportedly done through them.

Governmental openness and accountability are essential to the proper functioning of a democratic society. At one point in history, monarchy was the dominant form of government in Europe, and some monarchies tried to justify their existence through the concept of "Divine Right," the idea that kings were placed on their thrones by God, were divinely inspired and guided, and were carrying out God's will through their actions. Of course, to the extent that monarchs really were carrying out God's will, concepts like openness, transparency and democratic accountability had no role. After all, why would society allow common people to criticize what God has done, or allow them to rebuke the monarch for carrying out God's choices and actions?