“The Necessary Discomfort of Domestic Surveillance”
By Nicholas Clarkson
Fear and ignorance are brother and sister in a family of good intentions. When people end up consumed by these siblings, they always seem to ask for the same thing. In the case of domestic surveillance, the people cry for such clandestine programs to be shut down, while ignoring the larger picture. One would ask: do we lose sight because we choose to see only that portion of the picture that can be easily understood – the impact of such programs on our own lives – while ignoring the complex reality? Using the ethical theories of deontology and utilitarianism, I will argue that domestic surveillance is a necessary discomfort. Even though domestic surveillance has the potential to invade our privacy, with the proper oversight it is necessary to protect this country.
The information age, and the ability to use technology to send and access information across multiple platforms including social media, has opened up more ways than ever before for an individual or small group of people to be as destructive as an army using only minimal resources. This has been referred to as a “Netwar” where dispersed organizations, small groups, and individuals, communicate, coordinate, and conduct campaigns in a manner often without a central command using technologies attuned to the information age. This “Netwar” concept defines both the structure of the group and its use of technological networks; the information age has opened the door for such effective strategies to evolve into a new platform. The perfect example of a group utilizing this new medium in a more effective way is ISIS. In the past, a group such as ISIS would have had to maintain a vast infrastructure and work in limited distance locations, but today’s technology affords them a virtual infrastructure and allows them to work from anywhere in the world (Arguilla & Ronfeldt 6).
Moreover, this ability to use technology goes beyond rogue groups and applies as well to governments and clandestine organizations whose greater resources allow them to exploit information for their own purposes. David Gewirtz reports that all the allies spy on each other. The French broke into diplomats’ rooms, Israel tried to infiltrate the Pentagon, and more. Even though these clandestine actions cannot be corroborated, history has shown that governments are constantly trying to learn each other’s secrets by any quiet means. Furthering said means would involve the technologies available today. So the question remains how do we protect ourselves from this new form of warfare and potential damage on a limitless scale?
The purpose of domestic surveillance is to collect, process, and store US citizen data for the good of the nation. The argument against this is that people do not want their privacy invaded and do not think it is legal. The argument for domestic surveillance is that it protects US citizens from potential and realized threats that exist within our own country. Our country, like many others, has always had some form of surveillance on its own citizens for the very reason of protecting and securing its domain. However, after the terrorist attack on September 11, 2001, things changed. This would be the first time this country suffered an attack of such magnitude from an external aggressor, and the shock of the attack and the aftermath of fear that it brought allowed changes to happen quickly. Just weeks after the attack, the Patriot Act is passed on October 26, 2001 and later that year the NSA begins data mining. Arguments over privacy would come and go over the next twelve years; however, with Snowden’s revelation in 2013, when he leaked important government information showing the amount of domestic surveillance, the privacy argument would become forefront (“Domestic Surveillance Directorate”; Savage, et al.).
Opponents of domestic surveillance have good reason to be concerned, because it sets a precedent allowing for further invasion into an individual’s private life. The argument they mount revolves around a person’s right to privacy; however, neither the law nor the constitution explicitly states that right. Although, with the Katz case rejection, precedence was set and opened the door for a different interpretation of the Fourth Amendment, which in this case protected the privacy of the defendant. Similarly, because of this it opened the door for further redefinition of the Fourth Amendment. The reasonable expectation of privacy test, which has origins in Justice Harlan’s concurrence who describes this test as one where a person is show an expectation of privacy and that society be prepared to recognize it. This test allows fear to drive justice, which will only push the balance of securing the American citizen into a more dangerous place. What we need is more accountability that involves more of the government as shown with the Snowden incident. Much of what was in place was dormant and now needs to be put into long-term effect involving the courts and possibly Congress. Granted, surveillance programs and their operation did not function with full public consent and yet its need is still apparent. The continued operation of these programs needs to have more public involvement while still accomplishing its goals (Vagle 125-26; Setty, 101).
We have found ourselves in an increasing position where effective law enforcement relies on technological surveillance. There just are not enough officers and agents to handle the task of protecting American civilians with just their eyes and hands. As Justice Jackson points out in Johnson v. United States, law enforcement is a competitive enterprise in which government agents will seek any strategic advantage available to them. Their competition is the continually advancing world of crime in both technology and agency. It is like the mousetrap metaphor and we continue to need a larger one all the time. The question is how we do this without becoming a tyrannical surveillance state (Grey & Citron).
The types of technology being used for surveillance need a balance between security and privacy. Law enforcement is using technologies like drones, GPS tactics, and data aggregation. Data aggregation is a complex topic because it involves the use of communication companies like Verizon and AT&T, internet companies like Google and Facebook, and street video and picture cameras. As David Grey and Danielle Citron point out in their article, “The Right to Quantitative Privacy,” the critical goal will be to tailor an approach that satisfies Fourth Amendment standards in order to bring a clear understanding of both law enforcement and privacy interests at stake (102). Where the abuse of certain technologies by law enforcement occurs, action must be taken; however, on the other hand, law enforcement must be allowed to utilize enough technology in order to achieve a level of security demanded by the public.
In the ethical theory of deontology, one looks at the reason behind an act and the rule for which one chooses to act. This ethical does not deny that there are consequences or argue that consequences are not important; rather, it insists that consequences should not play a role in evaluating the morality of the act. Deontology derives its name from the word ‘deon’ meaning duty and is therefore described as a duty-based ethics. When evaluating the morality of an action, the deontologist considers if the action can be willed as a universal law. For example, as one ethicist points out in discussing the ethics of drones at an Oxford Union debate, “When you acknowledge or maintain that a particular form of warfare – a new form of warfare – is legitimate, you can’t just maintain that for yourself. You have to accept that it would be legitimate in the hands of your opponents or legitimate in the hands of any country that was engaged” (Waldron). Similarly, when evaluating the ethics of domestic surveillance, we have a duty to consider whether such programs can be willed as a universal law. Where one individual might find comfort in the numerous domestic surveillance protective technologies securing the country, many others enjoy and even need their privacy. For these people at their core the ability to keep a secret and selectively reveal them is a source of power that is important to a person’s autonomy. Even this brief analysis shows that because it cannot be willed as a universal law, domestic surveillance would not be seen as ethical by the theory of deontology (Mosser 6.1; Vagle 8).
In contrast to deontology and its emphasis on reason and universalizability, utilitarianism is a consequentialist theory which determines the morality of an action by evaluating the consequences the action will have on the majority. For a utilitarian the way to see whether an act is right or wrong is to look at its results or consequences. Utilitarianism argues that, given a set of choices, the act we should choose is that which produces the best result for the greatest number affected. Simply put the act which produces the greater good for the greatest numbers is the right choice. For example, as is demonstrated in the film Outbreak, where “extreme measures are taken to contain an epidemic of a deadly airborne virus,” if an incurable sickness afflicted a small village, a utilitarian would destroy it, wiping out all life, in order to stop the spread of the disease which could affect the surrounding area or farther potentially killing many more (Mosser 6.1; Outbreak).
In considering the ethics of domestic surveillance through the lens of utilitarianism, the larger affected group is the security of everyone. Statistically before the Snowden leak polls showed that 59% wanted reform and 63% wanted more oversight. This suggests that, as much as people may dislike domestic surveillance technologies and tactics, they understand why it is necessary. With the onslaught of the ISIS regime that is growing almost exponentially, such programs are necessary to protect the whole and to serve the greater good, even if that means that many experience real or psychological discomfort due to their presence. Therefore, continued use of domestic surveillance in America is a necessary discomfort (Jaycox).
One way to consider the necessary aspect of domestic surveillance is to see it as a kind of insurance policy. In our American society, we are for the most part dependent on insurance. We use this security net to protect us from all sorts of potential problems that may or may not ever happen in one’s lifetime, ranging across all aspects of life, from prescription medicine to your home collapsing from an earthquake. This is one value that American citizens believe to be necessary across the board. No one likes to pay for it, but everyone agrees that it is important in some variation in his or her life. September 11, 2001 made America reinvest in the government to provide insurance, a necessary insurance that brings with it discomfort in a way it did not want to acknowledge and yet signed off on it anyway. Like human nature, once something gets old, enough people forget and begin to throw away things that can protect them. Domestic surveillance may have grown out of control and yet the insurance that it provides is no less necessary. Those who would do America harm are planning on this human nature to open up our defenses in this technologically growing landscape so that just like on September 11, 2001, they can devastate us once again.
This is not to say that the program as it is does not need improvement. As stated before, utilitarianism show that maintaining domestic surveillance programs offers a greater good benefit to the greatest number, but proper oversight is needed. Moreover, the oversight must not come at the expense of appealing to the individual, when the focus needs to remain on the whole. Both short term and long term protection of our citizens requires some sacrifice and discomfort, both of which are justified because of the greater good of having a system in place protecting the most people and averting threats.
Domestic surveillance, even if not currently staving off a terrorist attack, is helping to avert those that would try. No one thought that we could be attacked in the egregious way that we were on September 11, 2001. In addition, no one thought a single terrorist group could amass such support until ISIS. The future is proving to be a place where the small can stand up to the big and even become big themselves. That future is only becoming more accessible day by day. If we are not ready to fight and protect against these new technologies then we will suffer our own hubris.
Nicholas Clarkson is in his third year at Ashford University pursuing a Bachelor’s Degree in Business Administration. Nicholas grew up in Portage, MI where he enjoyed the opportunity to express himself in various creative outlets including poetry and music. Having enjoyed those opportunities, Nicholas hopes to combine his background and current interests by focusing in Project Management and passing on his creative passion for words and life to others.