7669687 ‘Edward Snowden is a moral hero, even if
what he did was legally wrong’. Discuss.
The following essay will consider whether the actions of Edward Snowden were morally right or wrong according to contractarian theory. Contractarianism as a method of moral reasoning will be introduced then applied in an examination of a hypothetical agreement between Edward Snowden and the NSA concerning their working relations. This concept will then be broadened in order to view this relationship in the context of a hypothetical agreement between the public and the state. The two agreements will provide juxtaposition for the centrality of trust and its role in the effective function of both agreements. Conclusive points will then be drawn together, answering whether Snowden’s actions morally rectified the potentially subversive use of contractarianism by the NSA.
According to contractarian theorists, the first and foremost priority of rational agents is the pursuit of self-interest. In Gauthier’s terms, this predilection for ‘non-tuistic’ preferences and dismissal of other-regarding preferences reflects a lack of mutual concern amongst agents[1]. Contractarian theorists posit that rational agreements are required between agents in order to best facilitate the interests of all, not just those of individuals. If individuals were to purse their own interests with no regard for those of others, these interests will inevitably come into conflict. In order for an individual to achieve their own Pareto optimal outcome, they must often encroach upon the interests of others, thereby encouraging actions unconducive to the achievement of optimal outcomes for others[2]. This is known as the collective action problem.
The ‘prisoner’s dilemma’ scenario is cited in support of this- two individuals are remanded on suspicion of robbery, A and B, but the only charge available to convict both is breaking and entering for a year’s imprisonment. The district attorney proposes a deal whereby if one confesses and the partner does not, the confessor will be released without charge and the partner will receive a twenty year sentence. If both were to confess, they would each receive five year sentences. For A and B, their optimal respective outcomes would be to confess in the hope that the other would not. As this is the most appealing option for both, this is not a plausible option due to the likelihood of the other also confessing on the same premise. A co-operative strategy in which A and B decide not to confess, therefore receiving their second-ranked outcomes, would consequently satisfy the interests of both A and B as best as they could hope for in the circumstances[3]. This thought experiment illustrates how the possibility of non-achievement of optimal outcomes due to the actions of others prompts a willingness to co-operate in order to obtain the most realistically advantageous outcome.
The role of morality is to facilitate the broadest and most accommodating co-operation between agents. Principles of right and wrong are understood as rules specifying the requirements and permissions that allow this to be achieved[4]. In recognition of the prevalence of ‘non-tuistic’ preferences, contractarianism is more encouraging of the pursuit of the best outcomes for all. The action-guiding advice provided by the heavyweight moral theories, consequentialism and deontology, in the resolution of moral conflicts favours certain principles and therefore agents. Contractarianism distributes preference satisfaction more evenly due to its different conception of morality as an expression of rationality.
The structure of an agreement is two-fold. The initial bargaining position is a consideration of the agents’ respective interests as they stand prior to negotiations. This position must be the hypothetical result of non-cooperative interaction constrained by the Lockean Proviso (this being that no-one positions themselves so as to gain advantage over the other agents, to the latter’s detriment)[5]. From the subsequent bargaining position, negotiations can be made as to the extent to which each party has to restrict their own interests for the sake of co-operation. Agents will naturally only agree to terms which are mutually advantageous and that would not have been achieved had such interests been pursued individually.
The requirement for all agents to be fully informed of capacities and interests is crucial as it ensures equality in bargaining power with regard to knowledge of the desires of others, and how well they coalesce with an agent’s own desires. If a party misrepresents their capacities and vulnerabilities, they are then able to capitalise upon the bequest of less onerous principles within the terms of the agreement. Trust in honest disclosure is therefore paramount to the effective function of hypothetical agreements.
Parties to the agreement must have trust in the compliance of other parties as otherwise the suspicion of another’s pursuit of self-interest to the cost of your own interest will lead to an obstinacy to compromise fairly. The collective action problem re-emerges as the willingness to co-operate falls away. The very appeal of a rational agreement disintegrates. The concept of agreements thus far has been discussed openly and without regard to specific subject matter, but the underlying point remains the same regardless of subject matter.
If the subject matter of an agreement was to be specified, such as the nature of a hypothetical agreement between employees and employers, the impact of trust upon the functioning of an agreement and therefore the optimal fulfilment of interests, can be examined in more depth. Notwithstanding the formal agreements made between employees and employers in the form of contracts, there are expectations of trust on both side and concerning a range of criteria. An employer trusts that an employee will perform their job to the best of their ability. An employee trusts that an employer will have regard for their welfare in the work environment. The relationship works in both ways. Looking to the working relationship between Edward Snowden and the NSA, this same criteria can be applied although the nature of employment skews the depth of expectation. The power relationship between the two is asymmetrical as there is a greater burden upon employees of intelligence agencies and similar to safeguard the actual character of their work. The divulgence of any information regarding the activities of the employer does not just have an impact on the employers directly above Snowden, but also that organisation as a whole and the premise under which it exists.
Snowden’s release of official government documents to the Guardian and the Washington Post included information on the NSA programme ‘PRISM’, which targets the Internet communications and stored data of ‘non-United States citizens outside of the USA and those communicating with them. What was of more concern to Snowden was the collection of domestic telecommunications metadata from Verizon Business Network Services[6], supposedly contrary to the Fourth Amendment, and the wide use of Section 215 of the USA Patriot Act 2001 to collect domestic records under the guise of collecting business records (as provided for in the Act) in bulk, not individualised[7].
Snowden’s concern appears to be centred on the indiscriminate nature of intelligence-gathering by state organisations outside of the boundaries prescribed by the Constitution and the creative interpretation of legislation such as the USA Patriot Act 2001. His release of information concerning the NSA programme PRISM, which targets the Internet communications and stored data of non-US persons outside of the US and those communicating them, sparked outrage amongst members of the international community. This aspect of his actions in isolation has had a substantially detrimental impact on diplomatic relations with allies and has perhaps revealed a hypocritical character of the US’s actions after typically condemning such actions. His actions appear to have been motivated by a concern for the lack of public awareness of such practices- “eventually you realise these things need to be determined by the public, not by somebody who is merely hired by the government”[8].
So the question arises of whether Snowden’s violation of the trust placed in him not to make such revelations was morally wrong. Some have claimed his moral wrongdoing to be irrefutable due to the fact that he will have signed confidentiality agreements as part of his employment explicitly forbidding this type of action. Snowden himself has responded by saying that he signed Standard Form 312- a non-disclosure agreement between himself and the state, the terms of which he accepted, and did not swear to them. Snowden has emphasised that the penalties of violation are civil. He also took the Oath of Office during his time at the CIA, which includes the following phrases: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic… I take this obligation freely, without any mental reservation...”[9]. Naturally Snowden’s counter-argument is that he did not break this oath; he was defending the Constitution by alerting the public to the state’s violation.
Another factor to consider is whether Snowden could have achieved the same ends by another method. Snowden has claimed that he had spoken to both his co-workers and his supervisors within the NSA about data-mining, to no avail (although this has been denied by the NSA)[10]. In a televised debate between Harvard University law professor Alan Dershowitz and Washington Post reporter Barton Gellman, Gellman said: “I’ve been reporting on national security for 20 years… I’m not familiar with any case of a national security whistleblower ever, in my 20 years of covering this stuff, who was able to make an impact inside or who wasn’t crushed by the system for bringing his complaints”[11]. The distinction between ‘whistleblowing’ in standard cases of employment and those involving national security is clear here. It is not as simple as voicing your grievances in an enclosed space within the organisation, and hoping for them to amend their practices. This is a state organisation whose actions reflect not only on itself, but on the state as a political entity representing the public.
Aside from the hypothetical agreement between Snowden and the NSA, an even broader agreement can be seen to exist between the public and the state. Hobbes’ Leviathan focuses on how civil peace and social unity are best achieved by the Commonwealth through a social contract[12]. The frontispiece of the first edition depicts a gigantic human built of bodies of citizens with the sovereign as the head, representing how the Commonwealth is a body politic that mimics the human body. He explains that all natural men are authors to the contract as a way of escaping from the ‘state of nature’. In doing so, their identities are joined and condensed into single representation, unifying the multitude[13]. The conditions outlined above for agreements can be applied here.
In order to prove whether the NSA itself, as a representative body of the state, has acted immorally, it must be considered whether the actions taken by the NSA were conducive to the broadest form of co-operation between the public and the state. This entails full disclosure of capacities and vulnerabilities by both parties. The practices used by the NSA were not disclosed to the intelligence agencies’ oversight bodies as required. Their use was even fervently denied in the Senate by James Clapper. Oversight bodies are in place for this very reason but the NSA continuously denied or withheld information about their operations. The public has every right to know what actions are being conducted on its behalf due to powers delegated by itself to the state. This lack of knowledge means that the public, as party to the hypothetical agreement,
A subversive use of contractarianism may be at play here. If the scope is once again narrowed to examination of the relationship between the NSA and Snowden, the NSA’s expectation of trust from Snowden and its other employers serves to perpetuate its own interests by imposing silence about its practices. The NSA has exploited the centrality of preservation of trust in order to go above and beyond the powers already prescribed to it. In part this touches upon contractarian constructivism as moral truths, the need for discretion and trust, are being construed as truths about the ideal social order[14]. The NSA has effectively exploited the moral integrity of its employees, their perceived duty of loyalty and need to preserve trust, in order to commit actions that it knows would not achieve social consensus.
Snowden could therefore be hailed as a moral hero for revealing this exploitative character of the NSA and its partner bodies. By revealing information about their practices, Snowden has effectively levelled out the previous uneven knowledge bases of the parties and in doing so has enabled conditions whereby broader co-operation is possible. The public is now able to submit its interests within the format of the agreement more strongly as it is aware of the propensities of the state. What is more, future revisions of the agreement will be made with the indiscretions of the state in mind, as opposed to the assumption that the state can be trusted in negotiations. Snowden has attempted to single-handedly remedy the state’s violation of the rules of co-operation by alerting the opposing party, who are now able to represent themselves more fairly. Snowden has contributed to a broader form of co-operation and has therefore acted morally correctly.
Nevertheless it must be acknowledged how the asymmetrical power relations of the parties will always inhibit co-operation in some way. In the same way that law cannot be stated too stringently so as to accommodate for changes in circumstances and to infuse it with flexibility, hypothetical agreements between the state and the public cannot be stated too explicitly either. Due to this, the boundaries of the discretionary powers of the state as set out in the agreement will be blurred. The self-certification of ‘being in the nation’s interests’ will always prove to be a difficult justification to overcome due to its prima facie laudability, furthermore it can no longer be said with certainty what actions can be taken to secure national interests. Without sufficient certainty, the agreement between the state and the public on the subject of national security will never truly reveal the capacities of the state due to the need for secrecy, which begs the question of whether an agreement can fairly reflect the asymmetrical power balance.
Word count: 2464
Bibliography
Books
Darwall, S. (ed.) (2003) Contractarianism/Contractualism. (Oxford: Blackwell).
Darwall, S. (ed) (2007) (4th ed.) Deontology. (Oxford: Blackwell).
Gauthier, D. (1986) Morals by Agreement. (New York: OUP).
Hobbes, T. (1947) Leviathan. (Oxford: Blackwell).
Vallentyne, P. (1991) Contractarianism and Rational Choice. (Cambridge: The Press Syndicate).
Journal Articles
Baier, A. (1986) “Trust and antitrust”, Ethics, 96(2). pp. 231-260.
Ellsberg, D. (2010) “Secrecy and National Security Whistleblowing”, Social Research, 79(3). pp. 773-804.
Jubb, P.B. (1999) “Whistleblowing: A Restrictive Definition and Interpretation”, Journal of Business Ethics, 21. pp. 77-94.
Landau, S. (2013) “Making Sense from Snowden: What’s Significant in the NSA Surveillance Revelations”, IEEE Security and Privacy, July/August 2013. pp. 66-75.
Lindblom, L. (2007) “Dissolving the Moral Dilemma of Whistleblowing”, Journal of Business Ethics, 76. pp. 413-426.
Milo, R. (1995) “Contractarian Constructivism”, The Journal of Philosophy, 92(4). pp.181-204.
Internet Sources
Washington Post, 3rd January 2014, ‘Behind the Interview: How Snowden Thinks’. Accessed 28th March 2014.
Cudd, A., 2nd August2012, ‘Contractarianism’. Accessed 29th March 2014.
Davidson, A., 5th January 2014, ‘Did Edward Snowden Break His Oath?’. Accessed 28th March 2014.
Garcia, A., 26th December 2013, Alan Dershowitz rips Edward Snowden: ‘We have an absolute right’ to spy on other countries’. Accessed 27th March 2014.
Scahill, J. and Greenwald, G., 10th February 2014, ‘The NSA’s Secret Role in the U.S. Assassination Program’. Accessed 24th March 2014.
1
[1] This mutual lack of concern is manifested in an interest solely in the exploitation of others to further one’s own ends. Gauthier, D. (1986) Morals by Agreement. (New York: OUP). p11.
[2] Darwall, S. (2007) (4th ed.) “Introduction” in S. Darwall (ed.) Contractarianism/Contractualism. (Oxford: Blackwell). p4.
[3] Darwall, S. (2007) p4.
[4] Vallentyne, P. (1991) “Gautier’s three projects” in P. Vallentyne, Contractarianism and Rational Choice. (Cambridge: The Press Syndicate). p5.
[5] Vallentyne (1991). p5.
[6] Landau, S. (2013) “Making Sense from Snowden: What’s Significant in the NSA Surveillance Revelations”, IEEE Security and Privacy, July/August 2013. p.66.
[7]Landau (2013) p.68.
[8] Landau (2013) p66.
[9]
[10]
[11]
[12] Hobbes, T. (1947) Leviathan. (Oxford: Blackwell). p5.
[13] Hobbes (1947). p113.
[14] Milo, R. (1995) “Contractarian Constructivism”, The Journal of Philosophy, 92(4). p183.