A conversation between two Princeton University Press authors on the subject of the NSA Leaks -- what they tell us about Hacktivism and the ethics of whistleblowing.

More from Gabriella Coleman on the NSA Leaks

Today in a final post in our ongoing NSA debate between authors Gabriella Coleman and Rahul Sagar,  Professor Coleman, author of Coding Freedom, responds to Professor Sagar’s recent post, offering a historical perspective on intelligence agencies and raising the potential for grave abuse in an era of increased technological capabilities. Read the wrap up post in this fascinating series here:

Gabriella Coleman:

Rahul Sagar’s thoughtful response has prompted me to think through a few troubling questions which have been plaguing me since Snowden’s bombshell revelations. It is without question that intelligence agencies require secrecy to effectively work.  I agree that this issue is not new. But if history is any guide, it also shows that secrecy, while necessary, is also a breeding ground for abuse. In a prior era, a dramatic leak by the Citizens Commission to Investigate the FBI helped put an end to a 40 year reign of outrageous abuses, such as COINTELPRO, at the helm of J. Edgar Hoover who ruled the FBI with an secretive iron fist.

But this surveillance apparatus strikes as technologically and thus historically distinctive. It can be gravely abused with or without a Hoover. Never in our history have we had in place a surveillance infrastructure as extensive and powerful as we do now, nor administrations who have refused so systematically to declassify information. (One does wonder what Nixon could have done with the surveillance methods that the government has at its disposal today).  With enough computer power, it is frighteningly easy for the government to gather data. This ease will likely push them to seek questionable or ex post de facto justifications for their actions. This was put rather cogently and succinctly by civil liberties lawyer Jennifer Granick when “Of course, we see mission creep – once you build the mousetrap of surveillance infrastructure, they will come for the data.” It is not only that they have this power, but as sociologists and others, have noted, secrecy is alluring and really hard to give up/ This state of mind was put best by physicist Edward Teller who wrote, “secrecy, once accepted, becomes an addiction.”

There might be a very good reason to have the surveillance methods that the NSA has now, but until that reason is disclosed, there is no reason for them to have such awesome technical (and questionable) legal powers currently at their disposal. The problem is we have these programs and our government could use them as a tool of oppression (in fact the mere fact of their existence serves to stifle dissent). Even if abuses are not so grave today, what is so troubling is how these programs enable any future person who might gain control of them to utilize these tools for serious oppression.

We as a society have to ask whether this is a gamble we are willing to take. Since the stakes for the future are so high, the decision about the scope and depth of eavesdropping cannot and should not be an undertaking that is decided by the President, the FISA court, or even all the three branches of government acting in agreement. Only we as a people, who hold the truths described in the constitution as self-evident, are allowed, by that very constitution, to make changes to these rights. “to secure these rights, Governments are instituted among Men [and Women et al.], deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government” At some point, the actions of the government go too far, and it is up to us to sound the alarm. The Pentagon Papers, the COINTELPRO leaks, the Tet Offensive, these are many instances when citizens have not trusted our elected officials and with good reason.

It is our responsibility to hold our elected officials accountable, although we  can only effectively do so with the aid of a free press. Journalists help keep whistle-blowers accountable. Snowden worked with journalists, from independent film maker Laura Poitras to Glenn Greenwald at the Guardian to Barton Gellman of the Washington Post. The fact that respected news organizations accepted the leaks, filtered the information, and wrote extensive and thoughtful stories demonstrates the validity and responsibility of Snowden’s actions. If his leaks posed such a grave threat to the state of security, I trust these media establishments would not gone public with them.

Finally, I would like to clarify Snowden’s statements on Nuremberg. He is not equating the NSA with Nazi Germany, he just simply referencing a principle. He is also not saying that this principle exonerates him in any US court, but simply that it justifies his actions on a moral level. Snowden is saying that there are times where it is not only moral to break the law, but that it is immoral and wrong to not break the law. Further, it might be interesting  engage  in a thought experiment about how Snowden’s actions also might relate to the Nuremberg Principles.  For the purposes of this experiment, we would submit some undisputed facts about The United States. The United States continues to torture and cause substantial suffering to 44 people who are still held against their will in Guantanamo Bay, Cuba, via forced nasal intubation twice daily. In the past, they were tortured by electrocuting their genitals, and simulated drowning through waterboarding. The US has forcibly rendered people to other countries for purposes of torture, and deprive them of their liberty without charge or due process, calling them “detainees”. If we look how Nuremberg Principles defines a “crime against humanity” the United States has committed over half of the abuses on that list. The programs that Snowden has revealed likely were involved in the capture and detainment of many of these people.

In the end I, like everyone else, wants to live in a state of security. This means not only  thwarting terrorism—though it invariably includes it—but means having the security to engage in dissent, thus the security to call out the grave human rights abuses—such as those at Guantanamo Bay—which our elected officials have allowed to transpire and to raise red flags about programs, such as Prism, which might lead to grave abuse in the future.

 

 

More from Rahul Sagar on the NSA Leaks

Last week Rahul Sagar, author of Secrets and Leaks, and Gabriella Coleman, author of Coding Freedom, began a fascinating debate on the complex moral and political issues surrounding Edward Snowden and the NSA leaks. You can read professor Sagar’s thoughts here and Professor Coleman’s response here.

Today Professor Sagar responds once more to Professor Coleman, discussing the flow of information, the morality of foreign surveillance, and how to prevent the abuse of secrecy.

Rahul Sagar:

As I said, Snowden is brave to have revealed his identity. Professor Coleman is right to say that Snowden has not tried to draw attention himself. I would, however, point out that Snowden’s silence may owe more to Vladimir Putin’s instruction that he not cause trouble if he wants to stay on Russia. Hence, our evaluation of Snowden the person must await further evidence.

I am also not sure that Snowden’s actions are the product of the “contemporary historical moment.” It has become commonplace to describe leaking and whistleblowing as a response to the “excessive” secrecy of the Bush and Obama Administrations. The reality is that these practices have existed throughout American history, and they have consistently attracted controversy. So the fact that Snowden is not alone in making unauthorized disclosures does not answer the moral question of whether and when public employees should disclose classified information.

Professor Coleman praises Snowden’s actions because they “open the spigot so valuable information could flow to a thirsty public who holds the right to know.” This is to take the view that the American people themselves should decide when and how electronic surveillance is conducted. This emphasis on a participatory form of democracy is problematic though. National security requires secrecy. If we publicly rule out certain surveillance methods —for example that the government should not spy on Facebook users — then Al Qaeda will start using this channel. It is because we cannot openly discuss surveillance measure that we delegate the management of national security to our chosen representatives.

How, then, to prevent the abuse of secrecy? One way to do so is to rely on the separation of powers. The other is to rely on our own good sense. We cannot see what the President or the FISA court see, but we can appoint to these offices people whose character and judgment we can trust. Professor Coleman dismisses these constitutional measures too quickly. She takes the view that asking whistleblowers and leakers to respect democratically elected officials subject to checks and balances is to urge “blind respect for dubious laws”. But why should citizens believe that unelected and unaccountable individuals like Julian Assange, Bradley Manning, and Edward Snowden are better placed to know what’s good for America, and what should be secret? And how can we undo their actions if their disclosures turn out to have been rash?

I believe we should be more circumspect. State secrecy makes it hard to oversee officials, lawmakers, and judges and to bring them to account. This is frustrating, but the answer is not to encourage unauthorized disclosures on the grounds that this quenches the public’s thirst for information. The public may end up swallowing air instead of water. For instance, there might be very good reasons for why the NSA is using the surveillance methods it uses, but these reasons cannot always be shared with the public. One-sided disclosures like those made by Snowden can leave the public with a distorted sense of what the NSA is up to.

This does not mean that whistleblowers and leakers do not play a valuable role. They aid American democracy when they disobey the law in order to expose serious wrongdoing. But Snowden has not met this standard. Even if his initial disclosures about NSA surveillance had merit, his subsequent disclosures about American surveillance of foreign powers are inappropriate. Snowden has defended these disclosures by citing the Nuremberg Principle. But spying on foreign powers is not a crime against humanity. To equate foreign surveillance with Nazi war crimes betrays a lack of judgment. And to argue that foreign surveillance is immoral while taking refuge in a country that is run by a strongman from the former KGB is doubly odd.


Gabriella Coleman, Author of Coding Freedom on the NSA Leaks

Yesterday Rahul Sagar, author of the forthcoming Secrets and Leaks: The Dilemma of State Secrecy, offered his thoughts on Edward Snowden, the NSA, and the benefit and dangers of whistleblowing. Today, Gabriella Coleman, author of Coding Freedom: The Ethics and Aesthetics of Hacking joins us to respond to Professor Sagar’s view, offer her take on the impassioned debate surrounding Snowden’s actions, and the media’s allegations of narcissism. (Also, catch Professor Coleman today on Huffington Post Live discussing whether the FBI has ‘dismantled’ the hacker collective Anonymous.)

Gabriella Coleman:

Out of all the charges lobbed against Edward Snowden I find the lay diagnosis of  his “narcissism” to be the most puzzling and spurious. How exactly is risking your life—by which I mean life in jail—an instance of a narcissistic temperament? Even though he went public, partly for self-protection, he has kept his interactions with the media to a bare minimum, clearly not seeking more undue attention. Given the lack of evidence of this pathology, labeling him as such strikes as a character assassination meant to detract from the more pressing issues his actions have raised.

If we contextualize what he did, not in terms of personality but in light of the contemporary historical moment, what we see without a shadow of a doubt is that Edward Snowden is not alone. He is part of a growing cohort of individuals who have for years diagnosed the explosive rise of state secrecy and surveillance as enough of a problem that they are willing to take on personal risk to impel debate and change. What is most notable is that this cohort is composed of insiders (William Binney, Thomas Drake, Edward Snowden, Bradley Manning) and outsiders (Julian Assange, Barrett Brown, and James Bamford). The fact that there is a chorus is significant.

The public should perhaps be more skeptical if it were only one person or only the Julian Assanges’ of the world—long time activists who have always sat outside the state apparatus —who were crying foul. That we have investigative journalists, military personnel, employees from security agencies, and activists join the fray signals the extent of the problem; there are different unconnected individuals from distinct walks of life coming forward identifying similar problems.

This brings us to the shores of the second issue: the sanctity of the law. What I think is clear by now is that the revealed programs violate aspects of the law in both the spirit and the letter. Lawyers have recently put it in no uncertain terms: “The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance.” In an ideal world we would simply use legal mechanisms to eliminate bad laws or fight grave injustices. Critics should walk down this path before law-breaking. This is exactly what happened in this case. Since the inception of the Patriot Act, which was passed under a time of great national duress and fear, we have seen various attempts by civil liberties organizations to curtail efforts at the vast enterprise that is unwarranted, warantless wiretapping using the law. One lawsuit first brought forward by the EFF and ACLU in 2006 against AT&T was not only drawn out, it was ultimately stonewalled by a dubious law that granted telecoms who cooperated with the government with retroactive immunity. The law has been tampered with to such an extent to have rendered using it in this case useless.

Along with legal efforts,  individuals have also used available channels at their disposal to effect change but to no avail. We have to look no further than Thomas Drake, a long time NSA employee who  grew uneasy with the violations he witnessed first hand. His first actions were reform based. He went to his superiors with his concerns and was told to stop. He went to the press with unclassified information for which he payed dearly being the subject of a DOJ investigation, eventually dropped but not before his career had been ruined.

The only actions to have engendered substantive debate and faint wisps of change have been Snowden’s leaks. Why? Foremost is that there is no fabled majority who support surveillance.
When news about Prism first broke and polls were taken, only 56% were in favor of state surveillance and the polls failed to mention Americans were targeted. Even then, how it is a number which represents a mere half of a country can be cast as a majority? It can’t. This issue is
unsettled. Further, as more damning allegations have come out, numbers have shifted, and more Americans are in opposition to current programs, especially when the question reflects the fact that American’s digital lives are being captured and stored.

Snowden’s reasons for revealing information cannot be simply reduced to “secrets should not be kept.” His statements about why he did what he did, and the documents that he leaked have shown a much more complicated rationale that cannot be omitted from our analysis. What Snowden did was open the spigot so valuable information could flow to a thirsty public who holds the right to know. Only then, can the public move to a realistic assessment about what course of action to take with a government agency, which currently holds limitless powers for surveillance and who actively withheld information and lied to Congress about its actions.

The type of impassioned debate generated by Snowden and the fervent coalition building and advocacy which has cropped up to press for change in the wake of these revelations and not blind respect for dubious laws, represents the living pulse of democracy. We are indebted to Snowden to have opened the gates. It is now up to us to finish the job.

Rahul Sagar Talks Secrets and Leaks, and the NSA

Rahul Sagar, professor of politics at Princeton and author of the forthcoming Secrets and Leaks: The Dilemma of State Secrecy took some time to talk about his very timely book and offer his take on the NSA disclosures. Read his thoughts here, and stay tuned tomorrow for another perspective from Gabriella Coleman, author of Coding Freedom: The Ethics and Aesthetics of Hacking, anthropologist of hacking culture, and digital rights activist.

Professor Sagar, In SECRETS AND LEAKS, a book that really could not have been more well-timed in terms of recent events, you talk about how disclosures like the NSA ones are the only credible means of checking the executive power, and because of this, must be tolerated. This sounds like a pretty reluctant acceptance of whistle-blowing, so I wonder if you could explain more about where your skepticism, as well as your acceptance comes from.  How skeptical are you in regards to Snowden’s actions?

Secrets and Leaks argues that our usual responses to state secrecy are problematic. For nearly a century now, we have responded to the concern that secrecy might be misused by calling for legislative and judicial oversight. But this response shifts rather than resolves the problem, because it is only a matter of time before citizens begin to wonder whether their lawmakers and judges are doing a good job overseeing secrecy.

This is what we’re witnessing today. Even though Congress and the FISA court are overseeing the NSA, citizens are now questioning whether Congress and the FISA court are doing an adequate job. Of course they can’t know the answer to this question, because they can’t peer inside the secret committees in Congress or inside the secret FISA court.

So how then can citizens feel confident that state secrecy is not being misused? I argue that unauthorized disclosures of classified information — in the form of whistleblowing and leaking — provide an answer. Because someone, somewhere could make an unauthorized disclosure, government officials do not feel very confident about being able to conceal wrongdoing. This makes unauthorized disclosures a powerful regulatory weapon.

But this regulatory weapons can backfire. Unauthorized disclosures can actually hurt democracy. I am thinking here of the anonymous disclosures that led to wrongful charges being brought against Wen Ho Lee and Steven Hatfill. These episodes —- merely the tip of the iceberg — caution us against instantly making heroes of whistleblowers and leakers and the press who cover them. We must remember that these actors often have their own interests and agendas at heart. This is the source of my reluctance or cautiousness.

I have mixed feelings about Snowden’s actions. I do see him as having done something brave and idealistic. I appreciate his decision to reveal his identity. Reportedly he did this in order to prevent his colleagues from being harassed and interrogated by investigators. If this was really his motive—and not narcissism—then this is admirable.

At the same time, I am troubled by self-righteousness on the part of those who break the law. To break the law is a very serious thing. It must be done under certain circumstances — when it reveals egregious legal or moral violations — and in certain ways — by carefully revealing only so much as is necessary.

Both Bradley Manning and Snowden have revealed information because they think secrets should not be kept. But this is not a sound basis for breaking the law. A number of administrations, representatives, judges — from all three branches — as well as a majority of citizens support electronic surveillance. Therefore, to simply override what the majority have lawfully chosen with your personal beliefs smacks of moral arrogance.

Therefore, I see Snowden as misguided. He has imposed his own values and ideas on the public—a majority of whom support electronic surveillance, and whose representatives have repeatedly endorsed the NSA’s programs. This is all the more true with respect to Snowden’s disclosures concerning foreign (rather than domestic) surveillance.

Snowden’s rashness also sets a very bad precedent. If Snowden is allowed to break the law, then shouldn’t others be? What is to stop a fiscal hawk in the Defense Department from following Snowden’s example and revealing what he considers ‘wasteful spending’ on nuclear weapons research? This sort of behavior can seriously undermine the effectiveness of our national security apparatus.