By
Bill Creasy
The
movie Snowden
(2016) by Oliver Stone again raises the issues that Snowden himself
raised in 2013. How much electronic surveillance should the federal
government be allowed to do in pursuit of a small number of
terrorists? Unfortunately, the movie doesn't give an answer. It
does give some background on Edward Snowden.
According
to the movie, Snowden (played by Joseph Gordon-Levitt) was deeply
affected by the events of 9/11/01. As a patriotic young man, he
first joined the U.S. Army Special Forces, but he shattered his legs
during basic training. He got a job with the CIA in 2006 and wrote
an important program designed to back up huge amounts of data. The
program later found uses in other unintended areas including
targeting drone strikes.
He
had a series of intelligence positions as a contractor until 2013.
In the process, he became familiar with the U.S. Government program
for mass data collection of both U.S. citizens and noncitizens,
including phone calls, email, and social media. The movie
illustrates how easily this database can be searched for personal
information on essentially anyone. Snowdon admitted to using it once
to check on his girlfriend.
The
goal of the data collection is to look for terrorist networks. But a
search to the third degree of separation (searches of all contacts of
contacts of contacts of a suspect) gives over 2 million people, whose
data could be viewed with no need of a specific court order or
informed consent. So if you happen to have the same dentist or
delivery person or Facebook friend as a terrorist suspect, the NSA
can search all your email for anything that looks incriminating or
that looks like you are connected to any other terrorist suspect.
Snowden
felt obligated to report this surveillance to the press, even though
he knew that such an act would make him a criminal and a target of
all the U.S. intelligence agencies, cause him lose his job in Hawaii
and his security clearance, and threaten his relationship with his
long-time girlfriend.
A
problem with the movie is the depiction of Snowden's personality.
The movie has the "feel" of a fictional movie story.
Perhaps that is just Oliver Stone's directoral style. Snowden
appears in person at the end of the movie in a cameo. There are
documentaries and interviews of Snowden himself, for example the
documenary Citizenfour
by Laura Poitras. (Poitras, Glenn Greenwald, and Ewen MacAskill were
the first journalists that Snowden talked to in Hong Kong.) Snowden
was also interviewed remotely in a public event at Johns Hopkins
University while he was in Russia [1]. So there are sources for
seeing Snowden himself on video without the filter of a movie.
Snowden
doesn't seem like a movie star or a narcissist, just a fairly
average, smart, computer nerd. He seems to have remarkably calm
attitude about his actions. Perhaps he has developed a emotional
detachment from his chosen role as the center of a world-wide
controversy and as a person taking on the federal intelligence
agencies. That kind of attitude is not easily captured by actors.
It
is hard to see Edward Snowden and his background and call him a
traitor to the U.S. This is a clear message of the movie. He hasn't
done anything to hurt the U.S. for his personal gain. He claims no
one has been hurt by his data release, and no intelligence agency has
said anyone was hurt. He has acted in a way that is consistent with
a strong belief in the ideals of the U.S. founding documents,
including in freedom and privacy.
But
it's also hard to judge his ideas about the problem that he has
brought to light. Is he arguing that the government shouldn't do any
surveillance or intelligence collection? How does he reply to the
people who are worried about terrorists? There are officials who say
antiterrorism is an important social need, and what Americans don't
know about surveillance won't hurt them. They say that many people
voluntarily put personal information on the internet, so why should
they expect privacy? In short, how much privacy do people need?
There
is an ideological conflict between those who think that the
government should have access to any electronic information to track
criminals and terrorists, and those who think privacy is a right.
Neither extreme is practical, but both can make arguments to support
their extreme. So we must consider what privacy is for and what it
is worth. These are philosophical questions as well as practical
ones. Is it possible to balance the practical with the idealism, and
the personal vs. social?
People
have an instinctive, emotional desire for privacy, especially if they
think they are around people they don't trust. If others aren't
trustworthy, they may use embarrassing information for blackmail or
coercion. But once people feel safe in a situation, they are less
worried about protecting themselves, and there are rewards for being
trusting. People who are charming or good leaders tend to reveal
more about themselves in order to get people to like them and to do
what they want. So even on this non-rational level, privacy is in a
balance with openness.
When
it comes to social policy, a rational analysis is necessary. We
can't decide how private other people need to be based on our own
feelings. We have to break up the problem into several cases (but
this may not be an exhaustive list):
1.
Privacy for criminals. These include protests against the
government, since these can be defined as criminal by the government,
but the protest can have a higher principle or oppose the laws
themselves.
2.
Privacy for business secrets or competitive advantage.
3.
Privacy for military.
4.
Privacy of sexual relationships.
5.
Privacy for making arts or simply for making harmless mistakes,
because the thought that someone is watching will keep a person from
trying some action that is novel
6.
Privacy as a basic, irrevocable right that the government can't take
away
All
these facets of the issue are different, and they can't all be
covered in detail here. Some of the cases are easy to agree on. For
the first case, it is easy to see why a criminal wants privacy,
because without it someone will try to stop them. Clearly, this is a
case for a social agreement to invade the privacy of individuals to
investigate crimes. The legal and police systems are set up
according to that agreement. If someone breaks the law, their
privacy will be invaded. Even a suspect of a crime may be
investigated, within accepted rules and limits such as those in the
Bill of Rights.
Of
course, no system is perfect. The government can make laws that no
one likes, and then label the protesters against those laws as
criminals. It can keep secrets, and prosecute anyone who reveals the
secrets. Snowden is charged under the Espionage Act, a law to
prevent spying, and any trial would be held in secret and without
public oversight. Hence, the law creates its own Catch 22: any
effort to inform the public about the law is defined as illegal, but
the only way to get rid of the law is by public opposition.
Daniel Ellsburg, the whistleblower who published the Pentagon Papers, said that whistleblowers are important. But the courage for a person to support the country or the president is easier and much more common (even in the face of death) than whistleblowers who may loose their jobs, clearances, or freedom to oppose the social conventions. In trials, they can't make a case or explain their motives in open court. He said that Snowden or Chelsea Manning wouldn't have been heard in open civil court [2].
Snowden echoed the same idea, saying, "Whistleblowers are really rare and they have to be willing to strike a match to their whole life and burn it." [1]
Case
2 is generally considered almost sancrosant in a capitalist society.
Every business is expected and allowed to keep secrets. Fortunately,
the Founders set up the patent system, which allows businesses and
individuals to publish their methods as patents and still own the
rights to them as property.
Case
3 is also often unquestioned, as long as there is a legitimate need
for national defense. The big problem with privacy for national
defense is when "endless" wars are declared, like the war
on terrorism or the war on drugs. The government, or the
military/industrial/government complex and the associated special
interests, can use the endless war as protection for indefinite
funding and corruption. Citizens should be skeptical of calls for
endless wars for this reason. Anything that is labeled as a “war”
should be an existential threat to the country that has a definite
enemy to be defeated.
Governments
should also be concerned about the harm that can be done from a
security state. Roger Ebert wrote,
"But
the movie [The
Lives of Others]
is relevant today, as our government ignores habeas corpus, practices
secret torture, and asks for the right to wiretap and eavesdrop on
its citizens. Such tactics did not save East Germany; they destroyed
it, by making it a country its most loyal citizens could no longer
believe in." [3]
The
endless war on terrorism can also be questioned in terms of whether
it is really effective. Kade Crockford from the ACLU said that
dragnet surveillance is a lousy method for preventing terrorism. The
NSA failed to prevent 9/11 or Boston marathon bombing. It is good
for social control, and hence it is used by authoritarian
governments. Terrorism is prevented by investigating crimes with
probable cause, consistent with rights in the Constitution. NSA has
stopped zero terrorist threats from electronic surveillance. [2]
One
can argue that the other three cases deserve unrestricted privacy
subject to personal choice. Case 4 is a case for personal choice
about sexual relationships, either to reveal relationships or not,
unless there is a specific dispute that may affect others. Cases 5
and 6 are related in that they assume a personal right to privacy
that can't be violated.
Snowden
has strong feelings about a right to privacy. Snowden said in a
published interview,
"So
when we think in the context of the last decade’s infringements
upon personal liberty and the last year’s revelations, it’s not
about surveillance. It’s about liberty. When people say, “I have
nothing to hide,” what they’re saying is, “My rights don’t
matter.” Because you don’t need to justify your rights as a
citizen—that inverts the model of responsibility. The government
must justify its intrusion into your rights. If you stop defending
your rights by saying, “I don’t need them in this context” or
“I can’t understand this,” they are no longer rights. You have
ceded the concept of your own rights. You’ve converted them into
something you get as a revocable privilege from the government,
something that can be abrogated at its convenience. And that has
diminished the measure of liberty within a society." [4]
The
general emotional reaction or the legal right to want a privacy right
can be hard to accommodate with modern technology. Anyone who uses
the internet, a cell phone, or a credit card, leaves a "footprint"
in electronic records. Even if the message content is encrypted,
there may be a record of the source address and destination. Because
information on the internet is send as small packets of data, it is
necessary to collect all information in order to get the specific
packets that make up a phone conversation or a document. One option
is to stay off all electronic media, but this is a Luddite solution
to stop technological advance. An effort to encrypt all information
takes a constant vigilance by an individual.
Ultimately,
the problem of privacy doesn't yield to any simple or ideologically
pure answers. In some ways, it is a kind of arms race between those
collecting information and those keeping it secret. Snowden made a
contribution to publicizing the nature of the arms race and the
involvement of the government. It is the responsibility of the rest
of us to be vigilant about who is getting information about us and
what they are doing with it.
References
1.
Edward Snowden gave a presentation at Johns Hopkins University
Schriver Hall as part of the Foreign Affairs Symposium, a student-run
lecture series. He gave it via Google Hangouts videophone. The talk
was moderated by Daniel J. Solove, the John Harlan Marshall Research
Professor of Law at the George Washington University Law School, on
Wed., Feb. 17, 2016.
2.
Constitution Day panel discussion at Maryland Institute College of
Art on Wed., Sept. 17, 2014, with Hasan Elahi (U. Maryland), Daniel
Ellsburg, and Kade Crockford (ACLU).
3.
Roger Ebert, review of the film "The Lives of Others,"
2007. rogerebert.com
4.
Katrina vanden Heuvel and Stephen F. Cohen, "Snowden: 'I Did
What I Did Because I Believe It Is the Right Thing to Do,'"
Edward Snowden interview in The Nation magazine, reprinted
on alternet.org,
Nov. 11, 2014.