With Wikileaks and Snowden and more recently #Vault7 giving us a glimpse into the vast and far reaching methods and systems of governmental electronic surveillance the questions of the morality of such surveillance is a key issue for all of us who use the internet.
I recently read: Nicholas Tavaglione: A dilemma for Indiscriminate Pre-emptive Spying (Ethics and the Future of Spying Edited by Galliot and Reed, pages 120–132). I have here attempted to summarise his argument.
‘Traditional’ Spying is ‘discriminate reactive spying’, which focuses on an individual or group on the basis of riot intelligence, in order to verify specific suspicions or accumulate more evidence. These principles are encapsulated in the work of Gary Marx on Undercover Police Surveilence.
Until Snowden, indiscrimate spying was considered totalitarian on the ‘Stasi’ model (Los 2006).
As such there is a distinction between discriminate and indiscriminate spying, between pre-emptive and intimidative. PRISM-style Surveilence programs are Indiscriminate Pre-Emptive Spying, or IPS.
Tavaglione presents tow extremes. There’s the idea that such spying is an invasion of privacy, which could be considered a form of moral absolutism, and there’s the idea of ‘no harm no foul’ (my summary) which would count as ‘pure-wrongism’.
He then proposes that to deal with this, IPS much satisfy two conditions to be moral.
It must satisfy the condition of Necessity.
It must be as close as possible to ‘Perfect Voyeurism’; covert watching or listening that is neither discovered nor publicised.
Moral Presumptions and Necessity
There are times when it is right to suspend a particular moral value for a justified reason. ‘Defensible moral presumptions are commonplace in applied ethical reasoning’.
The necessity condition of defensibility requires three conditions to be satisfied to be considered necessary. These are: causal efficieny, abscence of less costly alternative, and proportionality.
Privacy is a moral presumption and as such can be defeated by the principle of necessity.
Does IPS meet this principle?
IPS consists in deploying high-tech mean in order to record mediated communications between hundreds of thousands of individuals on an indiscriminate basis. Therefore to be moral IPS needs to: have causal effiency in thwarting terror, preventing attacks and arresting enemy combatants; have an abscence of less costly alternatives; and, it should be proportionate.
There’s a difference between discriminate surveillance with a rationale and indiscriminate Surveilence for pre-emptive purposes.
What’s wrong with Voyeurism? Here Tavaglione follows Nathan’s arguement that for a consequentialist genuinely secret observation causes no harm. Nathan disagrees with this as logically the less detected any Surveilence is the more moral it becomes. For Nathan, however, the act of deception required for Voyeurism violates the ability of the individual(s) to assent or dissent, thus making people a means to an end and violating the Kantian Formula of Humanity.
Tavaglione recognises this element but for him it’s a separate argument. For his purposes he’s interested in the ‘harm’ caused by voyeurism. He writes:
“It follows that while IPS necessarily invades its targets’ privacy, it does not necessarily wrong them: let’s admit that if I am not aware of my privacy being invaded, I incur no harm and therefore am not wronged. If I am aware about being spied upon, I know that my interest in privacy is being frustrated; I may start to worry about how the personal data collected about me will be used and with whom they will be shared; I may be afraid of being the object of so much state attention; I may come to feel the ‘chilling effect’ of Surveilence and to alter my natural behaviour out of feat of upsetting the authorities. Surely no average person wants to attract attention from Washington. Nobody wants a US drone in his or her backyard. Thus it seems beyond dispute that detected and publicised IPS harms its targets. And it also seems beyond dispute that harming innocent people entails wronging them. For the sake of proportionality, such a massive wrong cannot be morally acceptable.’
Therefore, for IPS to be morally acceptable it must be Perfect Voyeurism — it must remain undiscovered, unpublicised and unexplored. It must be flawless spying without effect.
This means that to be moral IPS must, as set out before:
1: satisfy the condition of necessity;
2: be Perfect Voyeruism
These cannot happen together.
For IPS to be efficient it must be exploited and thus at risk of being discovered, which fails on the basis of causing harm. To satisfy Perfect Voyeruism, IPS cannot be efficient.
As such, Tavaglione writes:
“We must conclude that IPS cannot be morally justified. PRISM-style Surveilence is thus necessarily immoral.”
He responds to some possible objections.
1. Some may argue that the causal efficacy is needed for security, however the Surveilence of millions for the detainment of 10 or 100 is not proportional.
2. ‘IPS only harms the privacy of those who need to be arrested, if kept secret from the rest’. He responds that their arrest would provoke questions such as on what grounds or charges are they arrested, and thus discovery would be increasingly likely with each new arrest and thus harm would be caused to the innocent sooner or later.
3. There may be a logical fallacy if one follows the maxim ‘ought implies can’. Given that he says that IPS ‘ought’ to satisfy the dilemma to be moral and it can’t do that, then it’s unfair to say that IPS ought to do fulfill that to be moral.
Indiscriminate Pre-emptive Surveilence is inescapably wrong.
Snowden could be considered a hero for exposing the programmes, as it was in the public interest to know. However, from the perspective of the ethicists involved, as he is the one who revealed the existence of IPS to the world he is the one who has ‘caused’ the harm — which is not caused by being observed but by knowing that you are being observed. Thus, from the perspective of Perfect Voyeurism, whistleblowing promotes ‘wrongness’. “This is moral corruption, turning virtue into vice.
Tavaglione concludes: “ From a moral standpoint, IPS is a lost cause”.
Having reflected on this issue, it seems that the surveillance enacted by the CIA, NSA, GCHQ and others in the Intelligence Community has opened a form of Pandora’s box — it may well be immoral, but for the time being it’s the reality we find ourselves in. We would do well to acknowledge and be aware of that reality.