In all the brouhaha over Snowden’s betrayal of his NSA obligations and his country I have yet to see a serious analysis outlining the full problem with this information. The nature of the information, how and why it becomes classified. Non-classified information gathered without a warrant but not accessible without a warrant is an interesting category. Why such information should be classified at all is an under-covered question though most people understand intuitively that there’s something fundamentally wrong with the government’s approach.
In general this information has been accessible to lawyers in legal cases, ie not classified but has had short accessibility lifespans. Traditionally it has been fairly quickly thrown away because it is too expensive for private companies to maintain that volume of metadata for very long. Test cases are now underway where lawyers who have been turned down by the phone companies as their copies have been overwritten are now seeking the NSA’s copy in an effort to defend their clients from federal criminal prosecution. Criminal law discovery rules are rushing headlong towards a collision with the national security state.
It is not at all clear that such information should be classified at all and that the first serious crime in the Snowden case might have been committed by as yet unnamed bureaucrats who improperly classified this information to begin with, possibly leading to unjust criminal convictions and obstructing justice for years now. Overclassification is a major issue of long standing in US governance. It creates legal jeopardy where none should exist and impedes government oversight crucial to the functioning of the US system of government.
At trial (assuming there ever is one) the government bears the burden of proving that the information was properly classified in the first place. But long before this affair ever sees the inside of a court room, we need to hash out whether this classification was proper or should see the light of day.