In early June, 2013, while Barak Obama was the U.S. president, Americans learned of the U.S. Government’s domestic surveillance program, under which the Verizon Business Network Services subsidiary had been turning over call logs “on an ongoing daily basis” to the National Security Agency[1] The order, signed by a judge on the Foreign Intelligence Surveillance Court in April of that year, was "lawful,” U.S. Senator Dianne Feinstein contended.[2] The program analyzed time and number logs that did not include the calls’ content. According to U.S. Senator Chambliss, “All of these numbers are basically ferreted out by a computer, but if there’s a number that matches a [suspicious] number that has been dialed . . . , then that may be flagged. And they may or may not seek a court order to go further on that particular instance. But that’s the only time that this information is ever used in any kind of substantive way.”[3] Harry Reid, Majority Leader in the U.S. Senate at the time, added that the phone-data program had “worked to prevent” terrorist attacks.[4] Does it make any difference. ethically speaking, that the program had helped stop a domestic attack? Shortly after The Guardian broke the story on Verizon’s subsidiary serving corporate customers, The Wall Street Journal reported, “[T]he initiative also encompasses phone-call data” from AT&T and Sprint, as well as from Verizon itself (i.e., beyond its business subsidiary).[5] Does this revelation on the vast scale of the program make any difference ethically? Moreover, does a positive collective consequence--or the lack of a negative harm to the public good--justify forays into the privacy of a vast number of individuals?
Not surprisingly, privacy advocates were alarmed at the sheer scope of the program. Kate Martin of the Center for National Security Studies, a civil liberties advocacy group, said that “absent some explanation I haven’t thought of, this looks like the largest assault on privacy since the N.S.A. wiretapped Americans in clear violation of the law” under the Bush administration.[6] Her statement raises the question of whether the fact that the Obama administration had confined itself to court orders makes the program ethical.
Whereas the content of the phone conversations, including the parties’ names, were said to be not included in the trove of data turned over to the government, internet companies had been providing the contents of emails, online chats, Facebook accounts, Skype video calls, and web searches to the government as per court orders (i.e., not through direct access).[7] Does the inclusion of content make any difference, ethically speaking? Applying a few ethical theories may get us closer to some answers.
I. Utilitarianism
Utilitarianism maintains that conduct is ethical if it provides the greatest happiness for the greatest number of people. This can be in terms of pleasure over pain or benefits over costs. In terms of phone records, the question is whether the harm from attacks that are prevented by the program outweighs the harm from the loss of privacy. Put another way, do the benefits of prevented attacks exceed the costs in terms of privacy that is lost?
That at least one attack had already been prevented indicates that benefits do indeed exist—but for how many people (saved)? Furthermore, how grave would the attacks have been? Attacks can vary in their severity and breadth of harm. The reduction in the fear of a possible attack is also a benefit, and the program, once exposed, can be expected to have put that fear at ease, at least to some degree. That these factors require judgment means that different people are likely to come to different conclusions on a given issue.
On the harm or cost side, the number of people whose calls have been reported is relevant. Judgment again intrudes in the determination of the harm from the loss of privacy if the parties are not aware of it, and then if they are aware of it. That the contents of the calls are not reported suggests that the cost or harm may not exceed the program’s benefits, even though the data provided covers a great number of people. In other words, it is reasonable to conclude that the harm to them pales in comparison to the harm that would be unleashed by mass attacks were they not prevented by the program. In the twenty-first century, access to chemical weapons and nuclear bombs can translate into massive harm. Anyone having parents, a brother or sister, or a child living in a major city would likely judge that giving the government access to his or her phone log is worth the loss in privacy. In terms of utilitarianism, therefore, the phone-records government program can be regarded as ethical because it is consistent with the greatest net happiness for the greatest number. The pain prevented would likely have been severe, whereas, even though the phone-logs involve many more people, the costs in terms of loss of privacy are far less intense. In other words, saving legs and lives is a benefit so significant that the loss of some privacy of many more people would likely be less overall than the benefits overall. To be sure, weighing and relating benefits and costs both in terms of severity and the number of likely people involves considerable uncertainty. Utilitarianism is therefore often a matter of judgment rather than mathematical calculation. The value of the theory here may be in comparing the two programs.
For example, going on to the Prism program, it can be regarded as less ethical from a utilitarian standpoint because of the extent of content provided. The possibility of government “Nixonist” abuse is greater here. Further, it could be asked whether the sheer amount of content is necessary to prevent attacks. In other words, would more attacks in the works be prevented, and if so, would this increased benefit be worth the added cost in terms of privacy lost? Even though judgment again comes into play, the Prism program is likely less ethical than the phone-log program—perhaps even unethical.
II. Kantianism
Kant argued that treating others as ends in themselves rather than only as a means is a duty owing to the value of rational nature, given that it assigns values to things. The people whose calls are being reported are in one sense being used, but it is also possible that they or their loved ones could be saved from being killed or wounded as a result of the program. The more people whose calls are being reported, the stronger is the case that they themselves are being protected, and thus treated not merely as means, but also as ends in themselves. That three major phone companies have been submitting the logs suggests that the people can be regarded as the point of the program, rather than only as the means. The program can thus be viewed as ethical in Kantian terms.
In regard to the Prism program, the inclusion of so much content makes it easier to argue that the people are being used. At the same time, that so much from the internet is included means that more people are included. The assertion that the people harmed are also those being protected is thus stronger. However, it is also true that a lower proportion of those whose data is being mined would likely be those saved from the prevented attacks. A person could feel uncomfortable knowing that government employees could be reading his or her emails and tweets as well as looking at his or her Facebook pictures even though it is unlikely that he or she, living in the woods in Idaho, would ever be a victim of a terrorist attack. Such a person would rightly feel used for the sake of others’ safety.
For the Prism program to be ethical under Kantian ethics, one would be on more solid ground asserting that “the People” are being used and protected. As a government policy oriented to the general welfare, the program may thus be ethical. Even so, particular individuals could claim that they are being used.
III. Social Contract: Rights and Obligations
Even if people have not sat down in the state of nature to agree to a social contract as a basis for a society, the balance of rights and obligations can be understood in terms of a contract. The rights and obligations are both for the good of the people. The question for us regarding the phone program is whether the obligation to allow one’s calls to be noted and used secretly by a government agency would be viewed by actual or hypothetical contract negotiators as going too far in encroaching on the right to privacy. That is, the question is whether people in the state of nature would agree to giving up that right in exchange for being (or feeling) protected. Because the contents of the calls and the names of the callers are not part of the obligation, people in the state of nature could reasonably agree to it in exchange for feeling or actually being protected.
Regarding the Prism program, people devising a social contract would be less likely to agree to provide their emails, web-searches, blogs, tweets, and Facebook contents in exchange for feeling or being more secure in a society. From a social contract perspective, the Prism program can be regarded as unethical. This approach assumes that the right to privacy is created in the making of a social contract, rather than being a natural right. If the right is “hardwired” into human beings, we could not simply “trade it in” without an enduring psychological cost.
IV. Natural Rights
That privacy is typically subject to questions of how much it benefits us relative to how much the loss of privacy benefits society suggests that the right is not natural. However, when a person’s privacy is not respected, such as by someone demanding personal information, it is natural to react in anger—to have what Hume calls a sentiment of disapprobation. Hume claimed this emotional reaction is the moral judgment itself that some conduct is unethical. In other words, that we react rather instinctually to someone who presumes access to personal information or ignores personal space suggests that the right to privacy stems from a natural right built into being constituted as a human being. From this basis, both programs can be regarded as unethical—the Prism program being even more unethical than the phone program because of the additional contents being provided to the government.
That just suspecting that a stranger might be reading one’s personal email or seeing a personal photo from Facebook would make the typical person cringe suggests that something unethical is going on—that the person is being violated in a way that cannot be justified. As the news reports of the programs were being digested by the American people, a collective negative emotional reaction was palpable with such immediacy that it must have been natural, and thus triggered by the violation of a natural right. Even people who reasoned that security justifies the loss of privacy doubtlessly had the emotional reaction too. From this perspective, it can be predicted that the more privacy, or access to that which the person regards as person, is compromised, the more psychological harm to the person is incurred as a result. A person adopting the social-contract approach might agree to trade some privacy for security, but the natural right theory would stress the psychological cost and thus be much less inclined to “trade” the right.
In conclusion, whether or not the phone and Prism programs were unethical depends on not only judgment and which factors are included, but also the particular ethical theory being used. It is unlikely that a definite ethical “answer” can be obtained or even exists unless the breach of privacy was so grave (i.e., harmful to the individuals being spied on) that utilitarianism and natural rights would become inflamed. Even so, that the ethical theories analyzed above do not give the same answer suggests that at least some ethicists would still object. From my own analysis above, two factors strike me as decisive: how personal the information that being provided (and how much) is, and how useful a given amount of information is in preventing attacks. A trade-off is implied here, and it in turn is related to the long-standing trade-off between privacy and security, or, moreover, rights and related harms of individuals and the public good. Surely at some point, it becomes unethical to extract too much from certain individuals--especially if they are many--for the public good. Yet we should not be hoodwinked into thinking that all ethical theories speak with the same voice. This grayness can be expected to diminish as the harm increases. Also, the grayness may give way only on a gradual slippery slope, and thus not be detectable either by the general public. For example, when the Nazis invaded The Netherlands, Jews there were subject to a gradual tightening (i.e., adding) of restrictions--the purpose of the "bit by bit" approach was doubtless so the Jews would not raise an uproar, for who would for a slight change? Spying on citizens by the U.S. Government probably also increased by small iterations, each of which, on its own, could easily be justified in governmental circles. Herein lies a danger to liberty even in a democracy.
