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NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden

Published online by Cambridge University Press:  29 January 2014

George R. Lucas Jr.
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Extract

Whatever else one might say concerning the legality, morality, and prudence of his actions, Edward Snowden, the former U.S. National Security Agency (NSA) contractor, is right about the notion of publicity and informed consent, which together constitute the hallmark of democratic public policy. In order to be morally justifiable, any strategy or policy involving the body politic must be one to which it would voluntarily assent when fully informed about it. This, in essence, was Snowden's argument for leaking, in June 2013, the documents that revealed the massive NSA surveillance program:

So long as there's broad support amongst a people, it can be argued there's a level of legitimacy even to the most invasive and morally wrong program, as it was an informed and willing decision. . . . However, programs that are implemented in secret, out of public oversight, lack that legitimacy, and that's a problem. It also represents a dangerous normalization of “governing in the dark,” where decisions with enormous public impact occur without any public input.

Type
Essays
Information
Ethics & International Affairs , Volume 28 , Issue 1 , Spring 2014 , pp. 29 - 38
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2014 

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References

NOTES

1 One interesting and vexing problem is to show how this principle works collectively in a democracy, that is, how it applies to the body politic or general will, as opposed merely to the protections accorded individuals in a liberal state. Is it, for example, a necessary feature of any morally justified rule of law that such a regime requires full transparency and an absence of secrecy, and, in particular, that it mitigates against “clandestine” laws and policies? What about those clandestine activities undertaken on behalf of public security—for example, interstate espionage, but also undercover police work, confidential interstate agreements, and the like? Is “collective voluntary consent” adequately signified, for example, in the substantive content of existing law? Or must there be, in addition, some sort of “public declaration” of how specific legal statutes are generally being interpreted or applied, especially in instances where the resulting policies would without question prove controversial, and the details must, perforce, be concealed?

2 James Risen, “Snowden Says He Took No Secret Files to Russia,” New York Times, October 8, 2013.

3 Most recently, such a controversy has arisen over the informed consent (or lack thereof) in the experimental treatment of prostate cancer during a 1950s study funded by the National Institute of Health at Columbia University using homeless men from the Bowery in New York City.

4 Lucas, G. R., Anthropologists in Arms (Lanham, Md.: AltaMira Press, 2009)Google Scholar, e.g., ch. 6.

5 I choose and flag this designator specifically, since the relative obscurity of otherwise public events of these sorts has been found to have a unique status in domestic U.S. law, even while specific kinds, such as telephone call logs (or “luds”) were deemed to be in the public domain, with no presupposition of privacy attached, in a 1979 Supreme Court ruling.

6 This surveillance, and its impact on both the surveilled and the surveillance personnel, was detailed in the moving and troubling film, “The Lives of Others” (Das Leben der Anderen, 2006).

7 The relative tolerance of the use of deadly force for purposes labeled as “self-defense” is criticized on a number of grounds by Rodin, David, in War and Self-Defense (Oxford: Oxford University Press, 2003)Google Scholar, and in McMahan, Jeff, Killing in War (Oxford: Oxford University Press, 2009).CrossRefGoogle Scholar

8 As Rowe, Neil, a computer scientist and cyber expert, first pointed out in “War Crimes from Cyberweapons,” Journal of Information Warfare 6, no. 3 (2007), pp. 15–25.Google Scholar

9 Daniel J. Solove, “The End of Privacy,” Scientific American (September 2008), pp. 101–106, libserver.wlsh.tyc.edu.tw/sa/pdf.file/en/e080/e080p110.pdf.

10 In a star-crossed and ill-timed Amsterdam Law Forum article—published, ironically, on June 5, 2013, the same day that the first of Snowden's revelations appeared under reporter Glenn Greenwald's byline in the Guardian—I argued simply that the security of rank and file citizens of all nations might require some relaxation or compromise of the norm of privacy in the cyber domain, not realizing that this conflict had been settled in favor of greater security by agents of our government, out of sight, and thus lacking the full knowledge and consent of those allegedly being protected. See “Privacy, Anonymity, and Cyber Security,” Amsterdam Law Forum 5, no. 2 (2013), pp. 107–14Google Scholar, ojs.ubvu.vu.nl/alf/article/view/311/485.

11 David E. Sanger, “Differences on Cybertheft Complicate China Talks,” New York Times, July 10, 2013, www.nytimes.com/2013/07/11/world/asia/differences-on-cybertheft-complicate-china-talks.html.