Ethics, Surveillance and the Constitution

A Philosophical approach to Intelligence

by William Baynard III

Since the Classical period known as Golden Age of Greece, debate has raged over issues surrounding citizens’ interests coming into conflict with all sorts of collective or institutional interests. Seeking a balance between individual and institutional rights is an ongoing battle. In the twenty-first century, the fulcrum foundational to maintaining equilibrium, seems to be an ever-moving target. No clearer picture of this can be identified than in the recent escalating surveillance by federal agencies on the unsuspecting and equally trusting American public. As Marx opined, “the principles of fair information practice are decades old and need to be broadened to take into account new technologies for collecting personal information.” 8 Although this opinion is popular, it is arguably based firmly in the flatland of pragmatics rather than the high grounds of principle.

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Equally as compelling and boasting an origin as long as the struggle identified above, is the question of ethics. From Thales to the present, concerns over the rightness and wrongness of decisions made by entities in power over individuals have dominated the purview of philosophers. In the arena of the intelligence craft, ethically based disputes seem increasingly more complex and relevant in light of the intensification of non-state terrorist attacks targeting civilian populations. Additionally, matters of legality and jurisprudence are also escalating in importance as the bastion of the information age expands and invades the domain of every person, sliding the significance scale farther and faster perhaps than at any other time in history.

Philosophers embracing a deontological standard hold that individuals are prevented from harming others. Hence, standards of truth telling, taking lives of the innocent, torture, and so forth are considered absolutely prohibitive constraints.3 Though developed over thousands of years, deontological ethics has a rather modern philosophical application in the political sphere. As a system, deontology seeks to describe and analyze governing principles used to assess interactions among different constituencies across all levels of our society.

Seeking a balance between individual rights and the institution is an ongoing battle in the 21st century.

Specifically, deontologists are concerned with identifying moral duties owed by various actors to others in the societal ecosystem as well as specifying the ethical validity of duties from both a positive and a negative perspective. In other words, it is an effort to define which actions and activities are “right” and which are “wrong” absolutely. The thought process is rather black and white, with codification a realistic deliverable. The participating components in a deontological scheme are inescapably bound to preset duties designed to increase the benefit or decrease the burden of others.1

In Western political thought, the leading historical intellectual espousing a deontological position remains Enlightenment thinker Immanuel Kant. Kant established his categorical imperative as a first principle to tether ethical impulses.6 Kant created a two-tiered test to gage whether an action was moral or immoral. The first test measured universality, or if an action could be generalized in a way so as to compel adherence to it by every member of humanity. The second tier of Kant’s litmus centered on the securing of human dignity.

Deontologists such as Kant tend to draw sharp and contrasting distinctions as well as adopting an ethical universalism. Hence, in the analysis of Intelligence gathering activities, there would be little “wiggle room” for practitioners of the craft to deviate from the normative standard established for all. For example, consider the analysis of emails by government agencies. Kant would argue that a maxim needed to be constructed and evaluated. In this situation such a maxim might be: it is permissible for me to monitor the emails of my neighbor in order to maintain my safety. The maximum of eavesdropping on emails, if valid, would accordingly mean that my neighbor ought to be permitted to surveil my emails in order to assure his safety and that I would bear a duty – corresponding to his – not to interfere. Extrapolating this to the level of governments and agencies then, if the maxim regarding surveillance is not universally valid for individuals, neither would it be for institutions. Hence, my country ought not be permitted to surveil emails of its citizens just as I should not be allowed to peep into the emails of my neighbors; what is valid for the goose, according to Kantian deontologist, must be valid for the gander and also for the gaggle. Therefore, from a deontological perspective, if it is not “right” for ordinary citizens to conduct a dragnet of surveillance on their neighbors, then it is also not right for an institution to pursue these types of activities.

Privacy – the right to be left alone – is one of America’s’ most cherished rights. “Privacy is best treated as a property right. Property grants an owner the exclusive right to dispose of what he owns. Privacy is the exclusive right to dispose of access to one’s proper (private) domain.”4 A key feature of the Constitutionality of any particular activity, by citizen or government, is the consideration of moral law or natural law. The framers of the Constitution necessarily believed in an absolute, objective law of nature which was unchangeable and immutable in its essence and was moreover, written on the hearts – so to speak – of every human.

This interpretation of law was grounded in a deontological view of absolute morality and produced a normative ethic which was stable, rigid and definable. In analyzing the Constitutionality of government spying on its citizens, it is important to distinguish a natural law perspective, which the founders of our country embraced, with a more pragmatic interpretation which has dominated the federal judiciary for most of the last half century. This schema reveals a more utilitarian, consequentialist, or teleological bias as proved in some of the evolving body of case law coming out of federal courts.

The Fourth Amendment essentially has two functional articles: First, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Second, that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”2 From the outset, Americans were legally protected from invasion by governmental agencies into their privacy without pre-existing probable cause.

Yet, as capabilities for Uncle Sam to surveil rapidly develops parallel to developments in technology, the Fourth Amendment is ever more consistently been the narthex for discussions over citizen privacy and the scope of governmental power. In particular, National Security Agency (NSA) bulk surveillance has lately prompted a debate on the constitutionality of warrantless bulk collection as well as regarding just what is a “reasonable” search in an ever more digital age.

However, as early as 1928 in the Olmstead case, the United States began to reassess and battle with the erosion of this fundamental right and wrestle with the legality of various forms of government surveillance.9 Since the 1960s, the highest court in the land has granted a wide berth to government agencies under the executive branch to spy “warrantlessly” on citizens in instances deemed in the interest of national security.7

Over time, Oval office occupants have asserted their power to “bug” in two types of national security situations: domestic subversion and foreign intelligence operations. The Supreme Court Justices ultimately withdrew to the argument that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment. Thus, from a legal standpoint, rulings like these have opened the door to legalize and justify, under the cloak the Government’s duty to preserve national security, the intrusion on citizen’s Fourth Amendment rights which were designed to protect from unreasonable searches and seizures, without magisterial probable cause to validate it.

Recent intelligence programs initiated by U.S. government agencies violated the nation’s central principles.

An example of this is the recently launched Federal Bureau of Investigation’s (FBI) “next generation” facial recognition system. The program, now “fully operational” warehouses in excess of 50 million faces or said another way, approximately 1 out of every 6 Americans. The software is theorized to be only moderately effective however. Performance metrics are projected to produce 50 possible matches for a single inquiry which translates to only an 85% accuracy. Under the prevailing judicial climate it most certainly is constitutional since the photos populating the Bureau’s database are reportedly limited to those collected from public sources. Thus in the eyes of the Court, the collection of photos is not of Constitutional significance.

At the heart of the Fifth Amendment is the stipulation that no one may be deprived of property “without due process of law.”2 Due process is also a key component of the Fourteenth Amendment; here it serves three distinct doctrinal functions constitutionally: “First, it incorporates specific protections defined in the Bill of Rights….Second, it contains a substantive component, sometimes referred to as ‘substantive due process.’…Third, it is a guarantee of fair procedure, sometimes referred to as ‘procedural due process.’….”3 For this reason, both amendments impose an equivalent substantive and procedural due process requirement to which government entities at both the federal and state level must comply in order to regulate governmental activity.

In a republic based on popular sovereignty, ordinary citizens are elevated to principals or masters and those in government or operating on behalf of the government are merely their agents or servants. Recent surveillance programs undertaken by agencies of our government dangerously violated central principles of our nation. For example, the NSA has seized from private corporations capacious amounts of data on the telephonic and Internet usage of US citizens. Moreover, the Foreign Intelligence Surveillance Court, an arm of the US Federal government, approved of these seizures deeming them “constitutional” during secret proceedings; proceedings which only echelons of government employees participated, and issuing legal opinions that were kept secret even from the private corporations from whom the information was seized.” 5

The Fifth and Fourteenth Amendments’ principle of “due process” was violated in this case because the proceedings were secret. The cloak of concealment adjudicated the rights of private parties, both citizen and corporation, without those constituency’s ability to participate in the process, much less read the opinions of the judges. This kind of activity the antithesis to due process.

American citizens should be able to expect that their government will act with constitutional restraint. From a deontological perspective, one of the functions of the Constitution is to establish the ‘duty’ or what behavior is considered ‘valid’, hence binding on all members of our nation, both individual citizens and collectives like government. When activities interconnect with the historically protected liberties of free citizens, at work is a very different standard of both law and ethics; this novel standard of law and ethics seems to have attached ardently to the secret programs of our federal government.

Some advocates of justifying a different standard for government than is operative on its citizens may argue that such surveillance, by-passing of due process, and intrusions into privacy are justified because of their efficacy in promoting national security. Basic to such a claim is the proposition of a classic consequentialist: that the ends justify the means. However, “means” are exactly what both laws and ethics are in existence to regulate and moderate. Except for the Preamble of our Constitution, which articulates the aims of our republic, the rest of that towering document presents the means of our national operation. The concern over government surveillance of its body politic can be summed up by a quip reportedly attributed to Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.” C

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