The World After Snowden: Is an ethical surveillance possible?

George R. Lucas, professor of ethics and public policy at the Graduate School of Public Policy at the Naval Postgraduate School in Monterey, California, has developed an extended and thoughtful moral justification for the use of PRISM, one of the most sophisticated surveillance programs revealed by Edward Snowden one year ago. In this article, Internet Without Borders analyzes his reflection, and objects a series of arguments that seek to restore a proper defence of citizen’s fundamental privacy.

NSA Spying Hoodie in front of the UN by frederic.jacobs on Flickr (CC BY 2.0)
NSA Spying Hoodie in front of the UN by frederic.jacobs on Flickr (CC BY 2.0)
In a recent article entitled NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden” (in Ethics & International Affairs Ethics & International Affairs / Volume 28 / Issue 01 / Spring 2014 pp 29-38), George R. Lucas has developed an extended and thoughtful moral justification for the use of PRISM, one of the most sophisticated surveillance programs revealed by Edward Snowden one year ago. Pr Lucas recently retired from the Distinguished Chair in Ethics in the Vice Admiral James B. Stockdale Center for Ethical Leadership at the U.S. Naval Academy, and is currently professor of ethics and public policy at the Graduate School of Public Policy at the Naval Postgraduate School in Monterey, California. He speaks clearly as a philosopher, but with legitimate concerns for the reputation of the United States and the government that hired him. Eventually, he has nothing in common with one of the most controversial legal adviser of Bush government of the post 9/11 era, John Yoo, who was prosecuted and convicted in Europe for his dangerous justifications of torture in several "legal" memos (2001-2003), and who stated last year that Edward Snowden should go to jail, as quickly and for as long as possible.”

Lucas’ arguments are philosophical and moral. They belong to the Just War tradition that Michael Walzer has revisited in “Just and unjust wars”, published in the aftermath of the Vietnam War (Just and Unjust Wars: A Moral Argument with Historical Illustrations, Basic Books, 1977, 2006). In 2014, the United Stated are not anymore under attack – as it was the case in 2001 – and are about to withdraw from Afghanistan where a vast coalition has been engaged for more than ten years. 
Under such circumstances, how is it morally permissible to set up a program of mass surveillance in a continental democracy such as the United States? On what grounds a government can reasonably collect, store and analyze personal data to identify threats to the public safety?

Internet Without Borders analyzes Lucas' reflection, and objects a series of arguments that seek to restore a proper defence of citizens' fundamental privacy.



Surveillance to protect national security: the induced informed consent of citizens

During the First World War, programs of massive surveillance were also implemented to spy on correspondence and telecommunications in various representative democracies. In France, mobilization efforts and the imminence of German invasion were called to justify specific laws (state of siege) and the restriction of civil liberties as early as August 1914 - the extent of such laws on French territory was then narrowed. As Montesquieu wrote in The Spirit of Laws:

“(…) there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods.” (XII, 19). 

In the same spirit, George Lucas claims that the NSA program of massive surveillance could be permissible and should therefore obtain an "informed consent", i.e. a “voluntary consent from the subjects of security surveillance”. Thus, there will be major parts of PRISM “that subjects will knowingly and voluntarily consent to remain ignorant of, for the sake of the effectiveness of that surveillance.” Lucas’ reasoning is mainly analogical. Given that many widely accepted practices, such as “peer review” in academic institutions, or undercover agents for criminal investigation or espionage between rival states, are carried out with secrecy, while preserving publicity and individual privacy, programs of massive and under cover surveillance can be justified in the name of state security and defence. George Lucas then argues that the emergence of “relentless and unrestricted cyber conflict over the past decade” has blurred the distinction between domestic law enforcement, where governments have a monopoly on the use of force under a rule of law, and international armed conflict, during which domestic laws and the rule of law itself are often seriously limited. 

Cybercrime and cyber espionage  can lead to cyber warfare with increasing plausibility, as shown by the two attacks presumably unleashed by the Russian Federation against nearby adversaries in Estonia, or, more recently, by the Stuxnet attack  against Iranian nuclear facilities in 2010 (see also George R. Lucas, Jr., "Jus in Silico: Moral Restrictions on the Use of  Cyberwarfare”, in The Routledge Handbook of Ethics and War: Just War Theory in the Twenty-Firest Centyry, Fritz Allhoff et al. eds., 2013). Moreover, these attacks have been mainly under the control of intelligence agencies and civil personnel, whose activities do not rise to the level of a “threat or use of force” but constitute often criminal acts in the domestic jurisdictions. Yet, “none of these international or domestic legal constraints apply in the case of espionage, surveillance, or cover action.” If NSA operations are necessary because of the changing characters of war, what rules of engagement can be used for such operations? If not yet implemented, are they at least thinkable? Such rules are necessary, as the worldwide outrage that followed Snowden’s revelation suggests it. The norm of privacy is widely valued from a philosophical perspective as an important right, a kind of exercise of individual autonomy that ought to be strongly protected. However, e-mail packet-sniffing and metadata mining are justified if they protect ordinary citizens minding their own business and who do not deserve to be unduly subject to grave but unavoidable risks of harm. George Lucas draws then a familiar parallel between U.S. actions with those of China regarding data control. According to him, “the intent of the Chinese government is not to protect individuals from harm, but to control them against their will.” On the contrary, “the intent of the U.S. government (…) is to perform its legitimate duty to protect citizens from an unreasonable threat of harm.” But what could prevent U.S. government from large-scale internet monitoring? Severe limitation of surveillance scope to criminal conspiracies or outright warfare, will be guarantee of proportional actions respective of individual privacy, if and only if: 

- The focus of surveillance is limited insofar as possible towards legitimate security objectives and military targets, and the sole purpose is to prevent armed attack or its equivalent;
- The Intervention of the judiciary power, in the person of a judge, is imposed prior to any interference in ones communications
- The harm threatened is genuine and reasonably well-defined, and there exists legally-defined “probable cause” for surveillance;
- There is suitable transparency, oversight, and accountability for the program of surveillance, with full adversarial review of the legal permissions ultimately granted;
- The individual privacy of third parties and bystanders is not invaded, and no harm is done to civilians or their property; and,
- Most importantly, the security surveillance efforts are known to, and approved by, the public under surveillance (informed consent).

Here lies the main point of Lucas' argument: if the director of NSA had “simply divulged the bare outline of the policy”, the Snowden revelations would have been irrelevant. Moreover, such disclosure could have led to cooperation with the intelligence services of allied states joined to develop the precise details of the program, including the specific algorithms and programs used in data-mining and detective data-chaining. Instead of massive rejection from its owns citizens and foreign public opinions and governments, the U.S. government should have fostered a clear procedure for providing accountability and overseeing the security process – at international level when necessary - with clear civil or military rules of limited surveillance. Edward Snowden revelations were “harmful” because of their unexpected accuracy, but NSA program failed because of the lack of oversight over its agents. Oversight of public responsibilities goes with a minimum amount of publicity, that NSA leader were not ready to pay for, fearing to loose an unduly extended power. Meanwhile, individual agents could listen in to Skype conversation between private adults engaged in no crime, or to read their e-mail for amusement. 

Towards an ethical surveillance?

George Lucas advocates for a basic code of conduct that could serve to guide administrators of such programs and “limit their actions to justifiable objective”. This reasoning is convincing, as well as Lucas’ insistence upon accountability and oversight. The message is clearly meant to convince the U.S. government that it holds a huge responsibility for such failure. It failed to defend properly its security policy with policy administrators clearly identified  and trusted with a justifiable agenda. If procedures and “codes of conduct” can be a strong firewall against abuses in warfare, one can raise questions about their very necessity and opportunity regarding espionage. First of all, if neither the law of armed conflicts, nor the domestic law is applicable to such practices, a “code of conduct” would have no meanings. If such activities are deemed to remain secret, how could ethical recommendations be publicly discussed without revealing the very details of such operations? 

However, NSA scandal reveals a strong evidence: espionage and surveillance need legal and public justification in regimes where private intercourses and conversations are systematically protected. In this perspective, Internet Without Borders welcomes the reasonable and constructive effort made by a professor, well-trained in ethics and military affairs, to criticize his own government and propose a reform of surveillance programs. However, we can reasonably be sceptical about the very possibility of a code of "spying" conduct, and cautious about the ongoing blurring of the distinction between domestic laws and military rules of engagement. 

In a recent E-book published in February 2014 (fr), Internet Without Borders claims that the French 2013 Military Planning Law did not provide any of the basic guarantees proposed by George R. Lucas' reflections, and indeed argues the dangerous path towards blurred distinction between domestic laws and military rules of engagement. Without any intervention of the judiciary power, the now legal interception of Internet transmissions is underway to add new arbitrary restrictions of French civil liberties. Any agent of the executive power could now become as irresponsible as the French "elected king", whose constitutional "inviolability" allegedly preserve French citizens from any encroachment on their intimate freedoms.  Yet, in the midst of eighteen-century France, Montesquieu advised the monarchy – in which civil liberties were peculiarly threatened – to adopt a very cautious policy when citizens privacy and intimacy is at stake: 

“Of Spies in Monarchies. Should I be asked whether there is any necessity for spies in monarchies, my answer would be that the usual practice of good princes is not to employ them. When a man obeys the laws, he has discharged his duty to his prince. He ought at least to have his own house for an asylum, and the rest of his conduct should be exempt from inquiry. The trade of a spy might perhaps be tolerable, were it practised by honest men; but the necessary infamy of the person is sufficient to make us judge of the infamy of the thing.” (Spirit of the Laws, XII, 23) 

The United States are not a monarchy - neither France - and American citizens have kept for themselves a share of the public burden – during the time of elections at least. But does this mean that their intimacy has no protection anymore, and that their right to choose their government implies government’s right to influence their possible misleading choice? If voting needs secrecy procedures for preserving choice integrity, discussing and chatting call for intimacy if we want to preserve the citizen’s mind from any external disturbances. Otherwise, under the corrupted circumstances as surveillance societies provide nowadays, a “monitored consent” might be very deceitful for the elected ones who claim to receive a share of public confidence.  

Jeudi 5 Juin 2014
Félix Blanc
Félix Blanc Public Policy Manager Internet Sans Frontières En savoir plus sur cet auteur

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