“Permanent Record”: Edward Snowden Memoir Out in September – We Have Questions

On Thursday morning, Edward Snowden announced he wrote a book. Permanent Record will be published by Metropolitan Books, an imprint of MacMillan Publishing. It will be released in 20 countries on September 17th, including the US, United Kingdom, Canada and Germany.

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Snowden was a contractor for the National Security Agency who leaked highly-classified secrets of the US government’s electronic surveillance operations. He currently lives in exile in Russia and faces arrest and prosecution if he returns to the US. The Guardian and the Washington Post won Pulitzer Prizes for their coverage of Snowden’s leaks.

Laura Poitras’ 2014 Oscar-winning documentary Citizenfour chronicled Snowden’s flight to Hong Kong and eventually Moscow.  In 2015, Joseph Gordon Levitt starred in Snowden, the fictionalized account of Snowden’s plight directed by Oliver StonePermanent Record is Snowden’s own account of his part in gathering surveillance metadata and the “crisis of conscience” that let him to become a whistleblower.

John Sargent, CEO of MacMillan, said, “Edward Snowden decided at the age of 29 to give up his entire future for the good of his country. He displayed enormous courage in doing so, and like him or not, his is an incredible American story. There is no doubt that the world is a better and more private place for his actions. Macmillan is enormously proud to publish Permanent Record.”

https://twitter.com/Snowden/status/1156916530527035393/video/1

Questions Abound

The publisher did not disclose any financial details in their deal with Snowden. MacMillan acquired the book a year ago in secret. They worked with Snowden through his principal legal advisor, Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

The surprise announcement of “Permanent Record” raises several questions. We contacted Mark Zaid, national security lawyer and advocate for whistleblowers

Is it legal for a US publisher here to do business with Snowden?

“The Espionage Act actually does cover unauthorized possession or dissemination by third parties,” Zaid said. “Which would include the media (whether individual journalists or entities) as there is no First Amendment exception.

“Thus, as a practical matter, MacMillan could be prosecuted if it was found to be in possession of classified information or published it. That said, the reality is that the US Government has never gone after a journalist or publishing house under this law. I do not include Wikileaks as a media entity, especially given the allegations that it was is acting as a foreign agent for the Russian government.

“I am not aware of any prohibition against a publisher in general dealing with a fugitive. Obviously it is illegal to assist a fugitive but the USGOVT is doubtfully ever going to allege that publishing a book is anything of the sort.”

Is it legal for MacMillan to pay Snowden for the book?

“I am not aware of any law prohibiting MacMillan from paying Snowden,” Zaid said. “Even if he is a fugitive from justice. That said, the US Government could file a civil lawsuit against Snowden if he failed to submit his manuscript for prepubliction review and obtain explicit approval for publication. That obligation applies even if there is not one word of classified information within his book. It is a contractual obligation that he agreed to when he signed his secrecy/non-disclosure agreements with CIA and NSA.

“Under SCOTUS precedent in Snep v. US (1980), the US Government can obtain a constructive trust against Snowden and seek any monies he has or will ever obtain through advances and royalties. That is, the US Government could require MacMillan to turn over every royalty check to it instead of Snowden.”

Could the publication of this book be part of Snowden’s campaign for a pardon that would allow him to come home to the US?

“I wouldn’t want to speculate,” Zaid said. “But this would be the wrong way to go about it. I guarantee that publication of this book will infuriate the agencies and senior level US Government officials.”

This begs our final question: why would Snowden publish a book now and through a major publisher? He could just as easily released a free ebook to the internet and everyone would eat it up. Whatever the answer, the book is going to be an interesting historical document. I’m sure a lot of people will be reading it with great interest, picking over the details for secrets.

“Permanent Record” is now available for pre-order