Challenging Snowden: Spycraft, Ethics, and Amendments

Jason Payne

Over the course of the last decade, there has been a growing sense of public dissent over the United States government’s increased capability to remotely spy on citizens virtually anywhere in the world. The demur reached a fever pitch several years ago when defense industry whistleblowers Chelsea Manning and Edward Snowden intentionally leaked classified information. Snowden’s disclosures revealed details about American intelligence collection capabilities, targets, and special access programs of the National Security Agency (NSA). Faced with a monumental, but self-imposed, ethical dilemma, Snowden must have asked himself one pivotal question: Is it ethical for the country’s intelligence agencies to exploit nearly every known wireless communication modality in favor of U.S. policies and interests even though it could potentially involve spying on countless American citizens in violation of the Fourth Amendment? Edward Snowden utilized principles of ethical decision making, but faulty logic resulted in a treasonous act with longstanding damage to U.S. intelligence operations and foreign diplomacy.

Impact on the Intelligence Community

In 2013, former Booz Allen intelligence contractor, Edward Snowden, intentionally leaked nearly two million classified documents to WikiLeaks and media outlets in a move that upended the intelligence community. The unauthorized disclosures unveiled clandestine NSA collection programs, including PRISM and XKeyscore, that enabled mass surveillance by the U.S. intelligence community (IC) against foreign intelligence targets. Both programs provided the IC with access to enormous swaths of content and metadata across multiple social media platforms and communication modalities. The sensors associated with these programs often engaged in passive collection, but the databases themselves permitted analysts to query seemingly infinite amounts of information for intelligence purposes while only being limited by existing laws and the user’s imagination. Put in perspective, the Foreign Intelligence Surveillance Court disclosed that NSA collected in excess of 250 million foreign and domestic internet communications annually through PRISM with approximately 91% of the data sourced directly from internet service providers (ISP) (Bellaby, 2018).

The unauthorized leaks of Snowden yielded four major setbacks. These consequences included the compromise and loss of clandestine U.S. collection capabilities; increased public distrust of the intelligence community; significant loss of business for major U.S. corporations and ISPs; and strong-arm tactics by U.S. allies for increased intelligence sharing. While the negative impact on businesses such as Microsoft and Facebook somewhat adversely affected the U.S. economy, the irreversible damage to the American military and intelligence community was immeasurable. The leaks also supplied details of U.S. intelligence capabilities directly to adversarial nations that provided asylum to Snowden—Russia and the People’s Republic of China.

Balancing Ethics and the Constitution

When evaluating the ethical approaches that Snowden used to determine whether his unauthorized disclosures were justified, the consequences-based and virtues-based approaches are most applicable. According to Nolan (2017), there are “four categories of moral analysis: Moral Order and Common Good; Virtues and Rights; Redress and Subsidiarity; and Success and Proportionality” (p. 294). Within those categories, Nolan cites four measures that individuals must also weigh during the course of solving an ethical dilemma. The user must establish (a) the right intentions and (b) just cause to ensure that the ethical decision in question is (c) a last resort and (d) a proportional response to the problem (Nolan, 2017). These concepts of moral analysis parallel Dr. Jack Kem’s ethical triangle decision-making model. Kem’s model consists of three ethical approaches to problem solving (see Figure 1).

Figure 1: Ethical Triangle Decision-making Model (Kem, 2018)

Principles-based Ethical Approach (Rules)

The principles-based approach aligns the potential solution to an ethical dilemma with an established set of rules such as existing laws. This approach does not favor Snowden’s course of action because it would dictate that he adhere to the IC Whistleblower Protection Act and NSA’s nondisclosure agreement. The U.S. intelligence community aligns its collection methods and surveillance practices with the Fourth Amendment and the defense of global American interests. In accordance with this approach, these rules are deemed just and beneficial to society, and a moral individual will follow them without exception (Kem, 2018).

Virtues-based Ethical Approach

The virtues-based approach completely contrasts the previous approach because it eschews established laws and rules in favor of focusing on what an individual believes to be righteous and virtuous. Firmly entrenched in a belief that senior officials within the IC and the Obama Administration were corrupt, Snowden (2014) postulated:

The breaking point was seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress. There’s no saving an intelligence community that believes it can lie to the public and the legislators who need to be able to trust it and regulate its actions. . . . No one else was going to do this. The public had a right to know about these programs. The public had a right to know that which the government is doing in its name, and that which the government is doing against the public. (p. 3)

Put simply, Snowden believed the government grossly violated constitutional protections under the guise of public safety and national interest.

Consequences-based Ethical Approach (Outcomes)

This final ethical approach requires a would-be whistleblower to adopt a utilitarian view and determine whether “the ends justify the means” (Kem, 2018, p. 5). If so, a rogue action is ethical and justified. In this case, if Snowden believed that safeguarding the Constitution outweighed the deliberate compromise of U.S. collection capabilities and national defense strategy, then his actions were justified. What serves the greater good — exposing global-reaching, unethical practices or maintaining an unmatched, clandestine ability to spy on America’s enemies? Snowden (2013) asserted his position by stating, “I do not want to live in a world where everything I do and say is recorded. That is not something I am willing to support or live under” (p. 1).

Lawful Solution to an Ethical Dilemma

The reality is that Snowden applied flawed logic in his subsequent decision to betray the intelligence community. First, he greatly underestimated the damage to the IC and undervalued thousands of counterinsurgency operations that were successful due to programs like PRISM and XKeyscore (Snowden, 2014). Snowden also failed to believe in the system. NSA emplaces unethical countermeasures like mandatory annual training for all agency employees. It also effectuates procedures for properly handling incidental collection of U.S. persons and entities. A major overarching safeguard against illegal and unethical collection practices is NSA’s Office of General Counsel, which is “responsible for ensuring that the legal authorities that NSA has been asked to execute on behalf of the nation’s security are properly and reliably discharged” (National Security Agency, n.d.).

Legal Precedent and Foreign Intelligence Surveillance Act (FISA)

Due to constant advancements in wireless communication technology, the legislative and judiciary branches of government introduce applicable laws and legal decisions at rapid pace. Two landmark court cases, United States v. Miller (1976) and Smith v. Maryland (1979), essentially make it permissible for wireless service companies to provide call logs and other data to law enforcement officials under the issuing of a subpoena or warrant. During the most recent applicable case, Carpenter v. United States (2018), the U.S. Supreme Court narrowly ruled, “The government's warrantless acquisition of . . . cell-site records violated Fourth Amendment[s] right against unreasonable searches and seizures” (para. 4). Still, these court rulings strictly apply to American citizens and do nothing to protect foreign targets and terrorists who are ultimately the sole focus of the U.S. intelligence community.

Section 702 of the FISA Amendment Act governs collection practices that target email and social media accounts as well as passive collection of metadata content. The key element of FISA is that its provisions restrict the intelligence community to target only known or suspected foreign intelligence threats. In the event that collection sensors accidentally intercept communications of a U.S. person or entity, an analyst immediately discontinues and destroys the incidental collection.

Reporting Ethics Violations

Snowden should have used formal whistleblower reporting procedures via the Inspector General of the Intelligence Community (IGIC) in accordance with the Whistleblower Protection Act. Correct mediums for expressing unethical intelligence practices include use of the IGIC hotline or submission of either a Disclosure of Urgent Concern Form or External Review Panel Request Form. According to former Director of National Intelligence, James Clapper, “we will never ever be able to guarantee that there will not be an Edward Snowden or another Chelsea Manning because this is a large enterprise composed of human beings with all their idiosyncrasies” (Friedersdorf, 2014, p. 1). The best we can do as an intelligence community is ensure that insiders who feel the need to question or challenge the ethics and legality of their craft have a pragmatic avenue for voicing those concerns.

Conclusion

Utilizing ethical problem-solving models such as the categories of moral analysis and Kem’s ethical triangle, Edward Snowden believed he was making the morally correct choice to an ethical dilemma promulgated by unethical laws and corrupt political officials; however, his logic was flawed. The efforts of the men and women of the U.S. intelligence community only target America’s adversaries for the sole purpose of protecting its citizens in keeping with the Constitution. In a day where IC whistleblower complaints dominate media headlines and congressional chambers on Capitol Hill, it is difficult to dispute the efficacy of the IC Whistleblower Protection Act. Snowden’s reasoning should have led him to this conclusion. Ethics and legality do not always share parallel interests, but the laws of society should always clearly nest within an ethical paradigm that favors peace and prosperity for all.

References

Bellaby, R. (2018). The ethics of whistleblowing: Creating a new limit on intelligence activity.

Journal of international political theory, 14(1). pp. 60-84.

Carpenter v. United States, 585 U.S. (2018). Retrieved from https://www.oyez.org/cases/2017/16-402

Friedersdorf, C. (2014). What James Clapper doesn’t understand about Edward Snowden. The

Atlantic. Retrieved from https://www.theatlantic.com/politics/archive/2014/02/what-james-clapper-doesnt-understand-about-edward-snowden/284032/

Kem, J. D. (2018). Ethical decision making: Using the ethical triangle. Retrieved from http://www.cgscfoundation.org/wp-content/uploads/2016/04/Kem-UseoftheEthicalTriangle.pdf

National Security Agency. (n.d.). Retrieved from https://www.nsa.gov/about/ogc

Nolan, C. (2017). The Edward Snowden and the morality of secrecy. The Catholic Social Science Review. 22. pp. 291-310.

Snowden, E. J. (2013, June 10). Interview by E. MacAskill. Edward Snowden files source, The Guardian. Retrieved from https://www.theguardian.com/world/2013/jun/09/nsa-whistleblower-edward-snowden-why

Snowden, E. J. (2014, January 26). Interview by H. Seifel. Edward Snowden speaks to German press, Government Accountability Project. Retrieved from https://www.whistleblower.org/press/gap-client-edward-snowden-speaks-german-press-12614-transcript/