A Philosopher's Blog

The Ethics of Stockpiling Vulnerabilities

Posted in Business, Ethics, Philosophy, Politics, Technology by Michael LaBossiere on May 17, 2017

In May of 2017 the Wannacry Ransomware swept across the world, impacting thousands of computers. The attack affected hospitals, businesses, and universities and the damage has yet to be fully calculated. While any such large-scale attack is a matter of concern, the Wannacry incident is especially interesting. This is because the foundation of the attack was stolen from the National Security Agency of the United States. This raises an important moral issue, namely whether states should stockpile knowledge of software vulnerabilities and the software to exploit them.

A stock argument for states maintaining such stockpiles is the same as the argument used to justify stockpiling weapons such as tanks and aircraft. The general idea is that such stockpiles are needed for national security: to protect and advance the interests of the state. In the case of exploiting vulnerabilities for spying, the security argument can be tweaked a bit by drawing an analogy to other methods of spying. As should be evident, to the degree that states have the right to stockpile physical weapons and engage in spying for their security, they also would seem to have the right to stockpile software weapons and knowledge of vulnerabilities.

The obvious moral counter argument can be built on utilitarian grounds: the harm done when such software and information is stolen and distributed exceeds the benefits accrued by states having such software and information. The Wannacry incident serves as an excellent example of this. While the NSA might have had a brief period of advantage when it had exclusive ownership of the software and information, the damage done by the ransomware to the world certainly exceeds this small, temporary advantage. Given the large-scale damage that can be done, it seems likely that the harm caused by stolen software and information will generally exceed the benefits to states. As such, stockpiling such software and knowledge of vulnerabilities is morally wrong.

This can be countered by arguing that states just need to secure their weaponized software and information. Just as a state is morally obligated to ensure that no one steals its missiles to use in criminal or terrorist endeavors, a state is obligated to ensure that its software and vulnerability information is not stolen. If a state can do this, then it would be just as morally acceptable for a state to have these cyberweapons as it would be for it to have conventional weapons.

The easy and obvious reply to this counter is to point out that there are relevant differences between conventional weapons and cyberweapons that make it very difficult to properly secure them from unauthorized use. One difference is that stealing software and information is generally much easier and safer than stealing traditional weapons. For example, a hacker can get into the NSA from anywhere in the world, but a person who wanted to steal a missile would typically need to break into and out of a military base. As such, securing cyberweapons can be more difficult that securing other weapons. Another difference is that almost everyone in the world has access to the deployment system for software weapons—a device connected to the internet. In contrast, someone who stole, for example, a missile would also need a launching platform. A third difference is that software weapons are generally easier to use than traditional weapons. Because of these factors, cyberweapons are far harder to secure and this makes their stockpiling very risky. As such, the potential for serious harm combined with the difficulty of securing such weapons would seem to make them morally unacceptable.

But, suppose that such weapons and vulnerability information could be securely stored—this would seem to answer the counter. However, it only addresses the stockpiling of weaponized software and does not justify stockpiling vulnerabilities. While adequate storage would prevent the theft of the software and the acquisition of vulnerability information from the secure storage, the vulnerability would remain to be exploited by others. While a state that has such vulnerability information would not be directly responsible for others finding the vulnerabilities, the state would still be responsible for knowingly allowing the vulnerability to remain, thus potentially putting the rest of the world at risk. In the case of serious vulnerabilities, the potential harm of allowing such vulnerabilities to remain unfixed would seem to exceed the advantages a state would gain in keeping the information to itself. As such, states should not stockpile knowledge of such critical vulnerabilities, but should inform the relevant companies.

The interconnected web of computers that forms the nervous system of the modern world is far too important to everyone to put it risk for the relatively minor and short-term gains that could be had by states creating malware and stockpiling vulnerabilities. I would use an obvious analogy to the environment; but people are all too willing to inflict massive environmental damage for relatively small short term gains. This, of course, suggests that the people running states might prove as wicked and unwise regarding the virtual environment as they are regarding the physical environment.


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Bulk Data Collection

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on May 15, 2015

A federal appeals court ruled in May, 2015 that the NSA’s bulk collection of domestic calling data is illegal. While such bulk data collection would strike many as blatantly unconstitutional, this matter has not been addressed, though that is perhaps just a matter of time. My intent is to address the general issue of bulk domestic data collection by the state in a principled way.

When it comes to the state (or, more accurately, the people who compose the state) using its compulsive force against its citizens, there are three main areas of concern: practicality, morality and legality. I will addressing this matter within the context of the state using its power to impose on the rights and liberties of the citizens for the purported purpose of protecting them. This is, of course, the stock problem of liberty versus security.

In the case of practicality, the main question is whether or not the law, policy or process is effective in achieving its goals. This, obviously, needs to be balanced against the practical costs in terms of such things as time and resources (such as money).

In the United States, this illegal bulk data collection has been going on for years. To date, there seems to be but one public claim of success involving the program, which certainly indicates that the program is not effective. When the cost of the program is considered, the level of failure is appalling.

In defense of the program, some proponents have claimed that there have been many successes, but these cannot be reported because they must be kept secret. In fairness, it is certainly worth considering that there have been such secret successes that must remain secret for security reasons. However, this defense can easily be countered.

In order to accept this alleged secret evidence, those making the claim that it exists would need to be trustworthy. However, those making the claim have a vested interest in this matter, which certainly lowers their credibility. To use an analogy, if I was receiving huge sums of money for a special teaching program and could only show one success, but said there were many secret successes, you would certainly be wise to be skeptical of my claims. There is also the fact that thanks to Snowden, it is known that the people involved have no compunctions about lying about this matter, which certainly lowers their credibility.

One obvious solution would be for credible, trusted people with security clearance to be provided with the secret evidence. These people could then speak in defense of the bulk data collection without mentioning the secret specifics. Of course, given that everyone knows about the bulk data collection, it is not clear what relevant secrets could remain that the public simply cannot know about (except, perhaps, the secret that the program does not work).

Given the available evidence, the reasonable conclusion is that the bulk data collection is ineffective. While it is possible that there is some secret evidence, there is no compelling reason to believe this claim, given the lack of credibility on the part of those making this claim. This alone would suffice as grounds for ceasing this wasteful and ineffective approach.

In the case of morality, there are two main stock approaches. The first is a utilitarian approach in which the harms of achieving the security are weighed against the benefits provided by the security. The basic idea is that the state is warranted in infringing on the rights and liberties of the citizens on the condition that the imposition is outweighed by the wellbeing gained by the citizens—either in terms of positive gains or harms avoided. This principle applies beyond matters of security. For example, people justify such things as government mandated health care and limits on soda sizes on the same grounds that others justify domestic spying: these things are supposed to protect citizens.

Bulk data collection is, obviously enough, an imposition on the moral right to privacy—though it could be argued that this harm is fairly minimal. There are, of course, also the practical costs in terms of resources that could be used elsewhere, such as in health care or other security programs. Weighing the one alleged success against these costs, it seems evident that the bulk data collection is immoral on utilitarian grounds—it does not do enough good to outweigh its moral cost.

Another stock approach to such matters is to forgo utilitarianism and argue the ethics in another manner, such as appealing to rights. In the case of bulk data collection, it can be argued that it violates the right to privacy and is thus wrong—its success or failure in practical terms is irrelevant. In the United States people often argue this way when it comes to gun rights—the right outweighs utilitarian considerations about the well-being of the public.

Rights are, of course, not absolute—everyone knows the example of how the right to free expression does not warrant slander or yelling “fire” in a crowded theater when there is no fire. So, it could be argued that the right of privacy can be imposed upon. Many stock arguments exist to justify such impositions and these typical rest either on utilitarian arguments or arguments showing that the right to privacy does not apply. For example, it is commonly argued that criminals lack a right to privacy in regards to their wicked deeds—that is, there is no moral right to secrecy in order to conceal immoral deeds. While these arguments can be used to morally justify collecting data from specific suspects, they do not seem to justify bulk data collection—unless it can be shown that all Americans have forfeited their right to privacy.

It would thus seem that the bulk data collection cannot be justified on moral grounds. As a general rule, I favor the view that there is a presumption in favor of the citizen: the state needs a moral justification to impose on the citizen and it should not be assumed the state has a right to act unless the citizen can prove differently. This is, obviously enough, analogous to the presumption of innocence in the American legal system.

In regards to the legality of the matter, the specific law in question has been addressed.  In terms of bulk data collection in general, the answer seems quite obvious. While I am obviously not a constitutional scholar, bulk data collection seems to be a clear and egregious violation of the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

The easy and obvious counter is to point out that I, as I said, am not a constitutional scholar or even a lawyer. As such, my assessment of the 4th Amendment is lacking the needed professional authority. This is, of course, true—which is why this matter needs to be addressed by the Supreme Court.

In sum, there seems to be no practical, moral or legal justification for such bulk data collection by the state and hence it should not be permitted. This is my position as a philosopher and the 2016 Uncandidate.


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Is the NSA a Fascist Tyranny?

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on December 20, 2013
Adolf Hitler and Benito Mussolini in Munich, G...

(Photo credit: Wikipedia)

As anyone who follows the news knows, the NSA has been engaged in a massive spying program that seems to involve activities that are both immoral and illegal. However, it is interesting to consider whether or not the NSA is more than just a violator of the law and ethics. As such, I will endeavor to address the question of whether or not the NSA is a fascist tyranny.

While the term “fascism” gets thrown around loosely by both the left and the right in America, it seems best to defer to one of the experts on fascism, specifically Benito Mussolini. Mussolini claims that “fascism denies that the majority, by the simple fact that it is a majority, can direct human society; it denies that numbers alone can govern by means of a periodical consultation…” The NSA nicely fits into this model—it has operated without the approval or even the knowledge of the majority of the citizens of the United States.

It can be objected that the approval of certain elected officials and secret courts suffices to preserve the core democratic values of majority rule and consultation of the governed.  After all, there are many activities that are handled by representatives without the citizens directly voting.

This reply does have some merit: the United States is primarily a representative democracy and the will of the citizens is, in theory, enacted by elected officials. However, the NSA certainly seems to be operating largely outside of the domain of public decision and informed agreement. The extent of its intrusion into the lives of the citizens and the scope of its power certainly seems to demand that the NSA be subject to the open channels of democracy rather than allowing decisions to be made and implemented in the shadows.

One key aspect of fascism, at least according to Mussolini is that the “Fascist State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone….”

The NSA seems to, sadly enough, fit this concept of fascism. The NSA is literally organizing the nation and it is clearly denying citizens key liberties by its intrusions. Fittingly enough, these grotesque violations are defended in terms that Mussolini would appreciate: no important liberties are being infringed on…but it they were, it would be to protect the state from harm.

Rather importantly, the way the NSA has been operating shows that the deciding power has been the State (that is, secret courts and officials in the shadows of secrecy) and not the citizens.

Thus, it would seem that the NSA is fascist in nature. This is hardly a surprise given that this sort of police state surveillance system is a hallmark and stereotype of the oppressive fascist state. What remains to be seen is whether or not the NSA is tyrannical in nature.

As with “fascism”, people on the left and right throw around the term “tyranny” without much respect for the actual meaning of the term. To ensure that I am using it properly, I will go back to John Locke and make use of his account of tyranny. Given his influence in political philosophy and the American political system, he seems like a reasonable go-to person for this matter.

Locke defines “tyranny” as follows:

Tyranny is the exercise of power beyond right, which nobody can have a right to.  And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage.  When the governor, however entitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.

While the extent of the wrongdoing by the people at the NSA might never be known, it is clear that the power handed to them has generally not been used not for the good of the people. Those in charge have made their will and not the law their rule—despite being basically let off the legal leash by compliant courts and public officials, the NSA still engaged in illegal activity and thus acted tyrannically.

Some folks at the NSA even abused their power on the basis of “irregular passion.” One rather pathetic example is that some NSA personnel used the resources of their employer to spy on those they were romantically involved with or interested in.

As such, it would seem evident that the NSA is tyrannical—or at least a tool of tyranny. What remains is to consider the proper response to tyranny. Locke, not surprisingly, had a clear answer:

Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.

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Spying, Ethics & Prudence

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on October 30, 2013
The seal of the U.S. National Security Agency....

All up in your biz (Photo credit: Wikipedia)

It was recently revealed that the NSA had been tapping the phones of world leaders, such as Germany’s Chancellor Merkel. Naturally enough, these leaders expressed shock and outrage at this practice. Equally naturally, experts on espionage have tended to note that this shock and outrage is mere theater—such leaders surely knew that they were being spied on. After all, they themselves head up countries with robust espionage systems that no doubt spy on everything they can spy on.

While not an expert on espionage, I have noted the various revelations over the years involving close allies spying on and stealing secrets from each other. As such, I was not shocked by the fact that the NSA had been spying on everyone they could spy on. In addition to having learned the lesson of history, I also accept the reality of the principle of Totally in Everyone’s Business. This is the principle that all states endeavor to get totally into everyone’s business to the degree that their capabilities allow. Or, put another way, states endeavor to spy as much as they possibly can. The main limiting factors on the totality include such factors as technology, competence, money, and human resources. Ethics and law are generally not limiting factors—as history clearly shows. Since I was aware that the NSA had the capacity to spy on American citizens and world leaders alike, I inferred that they were doing so.

There is also the fact that snooping, like cocaine, is addictive and it requires ever more to satisfy that desire. In general, people do like to snoop and once they get a taste of snooping, they often want more. As with any addiction, people can quickly become reckless and a bit irrational. This could be called the principle of addictive snooping. So, once the NSA snoops got to snooping, they really wanted to expand that snooping.

Another factor is the fact that folks in power tend to be a bit paranoid. Since they are usually up to something, they tend to believe that other people are also up to something. Hence, they tend to believe they need to keep an eye on these people—be they fellow citizens, foreign citizens or allied leaders.

As noted above, such espionage is generally not limited by ethics or law (although countries like the United States will go through the most insane legal gymnastics to give such things a coat of legal paint). Recently I was listening to bit on NPR about the spying and one of the commentators noted that in espionage it is a matter of prudence rather than morality. This stuck with me because I had recently been teaching Kant’s ethics and Kant makes a clear distinction between acting from prudence (what is “smart”) and acting from duty (what is right). In the case of espionage, the idea is the usual consequentialist calculation: is the potential for gain worth the risk? In the case of spying on allies, it is a matter of sorting out the likely damage from the revelation and the potential gains from such spying. In the case of established allies like Germany, it seems reasonable to take the harm to exceed the potential for gain. Then again, given the history of Germany perhaps keeping a close eye on everything might not be such a bad idea.

The notion that espionage is about prudence rather than ethics is part of a common notion that ethics is a luxury that cannot be afforded in the context of matters of great importance. This seems to rest on the assumption that ethics is for easy and safe matters. This is, of course, somewhat ironic given that it is in the hard and unsafe matters that ethics is most needed. It is rather like saying that safety gear is for the safe climbing situations and one should just go naked when the climbing gets really dangerous.

Of course, it can be countered that such matters as international espionage deal with things that are so serious and that the stakes are so high that one cannot be handcuffed by the restraints of ethics. By analogy, this would be like trying to fight with one hand tied behind your back. People also make the same argument when it comes to things like torture and assassination: we have to do these things to be safe and ethics must be set aside so we can preserve what is of value.

There are two obvious problems here. One is the usual concern that if we set aside our ethical values, then we have already destroyed what is of value. The second is the fact that judging what is of value and what should be done in its defense are matters of ethics. As such, this would be like saying that one must throw away his tape measure so that he might properly measure the board he is about to cut. However, his tape measure is just what he needs in order to make the proper cut. Likewise, to make decisions about such things as spying, torture and assassination we need our ethical values. To say they must be set aside is itself a moral judgment: it is the judgment that we should do wrong to achieve some end and pretend that we are not really doing what is wrong—just what is in our interest or expedient.

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Building the Police State

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on August 28, 2013
The seal of the U.S. National Security Agency....

“Up in your business”. (Photo credit: Wikipedia)

Growing up in the Cold War and watching movies about WWII I absorbed the lesson that authoritarian police states spied on their citizens and had no regard for the freedom of the press. In the West, or so I was raised to believe, the government did not spy on the people and respected our freedoms. That sort of behavior was for the bad guys—the Nazis and the Reds. Those of us in the white hats, well, we were a better sort.

As I grew up, I learned that our white hats were not quite so white. But, I still believed that domestic spying was fairly limited and that the press was mostly free. As technology changed, I was sure that domestic spying increased—after all, when people have the means, they are very good at finding reasons to use those means. After 9/11 I was quite sure that domestic spying had significantly increased and I heard about various programs involving big data. Still, the revelations of Prism were mildly surprising in terms of the scale of the data gathering and the blatant disregard of privacy rights and, of course, ethics.

In Prism and other such programs, the United States has a spying program that the Nazis and Reds only dreamed of—what amounts to a technological panopticon that scoops up massive data on everyone. While the claim is that the data is only used in accord with the law and is used for national security against terrorists, the fact remains that it is an incredibly powerful tool that could easily be used against citizens. Interestingly, the gun-rights folks were terrified of something as bush league as a Federal list of firearms. Prism and other programs should horrify them—and us as well.

I do not entertain any paranoid fantasies about black helicopters or vast conspiracies involving the Illuminati. I do not need to—this sort of vast system of spying is quite real as its potential for misuse. After all, by the iron law of technology, any technology that can be misused will be misused.

The folks in power almost certainly will want to expand on the use of these sort of police state systems. As proof, the main use of many of the legal tools generated for the war on terror has been in the realm of police work—typically involving drugs. It certainly makes sense that the police and others will see this data as too useful to not use. There is also the tendency of those in power to want to gather information and more power—these systems fit right into the usual pattern. This will not, of course, result in the sort of overnight take-over so popular in fiction, but the usual gradual erosion of privacy and rights.

One recent and dramatic example of the expanding police state was the British detention of journalist David Miranda. The justification was, as should be expected these days, laws relating to terror. These laws seem to be amazingly broad and apparently allow the state to do almost as it wishes, provided the words “national security” and “terrorism” are properly invoked. In addition to detaining and interrogating Miranda, the police also seized his property on the grounds that he might be carrying secrets. Miranda has no known connections to any actual terrorists—he is merely a journalist who has been working on the story about Snowden and the NSA.

The British government also leaned on the Guardian to pressure them into handing over the information the paper received from Snowden. Based on the information from Snowden, the Guardian claimed that the GCHQ used NSA data from Prism to illegally spy on British citizens. This has been denied by the government, but the claim certainly does have considerable plausibility.

On the one hand, a case can be made that the governments of the United States and Britain have been acting correctly: they are trying to keep their citizens safe and need to act against whistleblowers and journalists in order to preserve the secrets needed for national security.

On the other hand, it seems reasonable to believe that the governments are acting wrongly. The United States has set up a massive privacy violating spying program in response to the incredibly minor threat of terrorism. The United States and Britain have evoked the boogey man of terror and the magic words “national security” in what appears to be an attempt to conceal misdeeds and illegalities. The British have also engaged in what seems to be coercive tactics against journalists and the Guardian. That is to say, that the West is acting rather like the bad guys of my youth.

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Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on June 12, 2013
National Security Agency seal

(Photo credit: Wikipedia)

Information about the United States’ Prism program was leaked by Edward Snowden  to the Washington Post and the Guardian. Some people are casting Snowden as a traitor while others are lauding him as a hero. Some are presenting him as motivated by pure narcissism.

People have a tendency to present their actions in the most favorable light, so it is hardly surprising that Snowden claims that his  motivation was ethical in nature:

The N.S.A. has built an infrastructure that allows it to intercept almost everything. With this capability, the vast majority of human communications are automatically ingested without targeting. If I wanted to see your e-mails or your wife’s phone, all I have to do is use intercepts. I can get your e-mails, passwords, phone records, credit cards.

I don’t want to live in a society that does these sort of things… 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.

If Snowden is being honest about his motivation, then a case can be made that he acted rightly. That is, he acted in accord with his moral conscience. While he might have been in error, it is unreasonable to fault a person who acts in this manner-at least if the person’s moral conscience is properly informed. While ignorance can be an excuse, willful ignorance or unwarranted ignorance do not provide a moral excuse.

In the case of Snowden, it would be unreasonable to claim that he was ignorant of the general business of the NSA. It is a matter of general knowledge that the NSA is in the business of gathering information domestically. It is also a matter of general knowledge that since 9/11 domestic spying has been a rather flexible sort of matter. As such, Snowden should have not been morally shocked that the NSA engaged in such activities.

It could be replied that while Snowden should have been aware of the general business of the NSA, he was initially unaware of the extent of Prism. This does have considerable  plausibility-the Prism program was (before the leak) top secret and hence Snowden would almost certainly not have known the details about it prior to his employment. As such, Snowden could plausible claim ignorance in this matter. It could also be replied that Snowden changed his mind over time.

Even if Snowden acted from a moral motivation, there is still the question of whether or not his actions were well considered. After all, a person could act from his conscience, but the actions could be poorly considered. In the case of Snowden and the NSA, Snowden elected to expose a program that he knew was legal and this certainly complicates matters. After all, it is one thing to leak information about illegal activities and quite another to leak information about legal activities.

The obvious reply to this is that what is legal is not the same as what is ethical (except for those who accept legalism). As such, the legal Prism program could be unethical. Assuming that a citizen should expose the moral misdeeds of the state, if the Prism program is immoral, then Snowden could have acted rightly in exposing the secrets.

Obviously enough, a rather important matter is whether or not Snowden had good grounds on which to believe that Prism is an immoral program. But this is a matter for another time.

Getting back to the main issue, the Guardian and the Post did not publish most of the information that Snowden leaked to them-they decided that it should not be made public. A case could be made that Snowden’s leak was somewhat irresponsible in that he leaked far more than was needed to expose misdeeds and this excessive leaking could thus be regarded as unethical. It could also be taken as evidence that he was not motivated by moral reasons but by some other factors. Then again, it could be argued that he just engaged in poor decision making in this regard.

It is also worth considering that Snowden apparently went straight to leaking rather than attempting to address his concerns through legal and proper channels. After all, there are mechanisms in place for such matters. However, it could be replied that Snowden believed that this was not a viable option. The Obama administration, despite is professed support for whistleblowers and transparency, has been rather non-transparent and has established a reputation as being rather harsh on whistleblowers. There is also the question of who Snowden could have gone to in order to address his concerns-as noted above, everything being done was legal and had the blessing of all the relevant authorities. So, if he believed that all the folks in the government were involved in this and accepted it as legal, he could hardly be expected to take his concerns to them.

It is also worth noting that Snowden fled the United States to Hong Kong. When asked about this, he said that “they have a spirited commitment to free speech and the right of political dissent.” Given that Hong Kong is now controlled by China (which certainly does not have a commitment to free speech and the right of political dissent), this raises some concerns. It could be the case that Snowden really believes that Hong Kong is a bastion of free speech and will protect him from the United States or perhaps he is acting pragmatically and seeking protection from a power that can stand up to the United States. In any case, there is the obvious concern that China now has easy access to Snowden and the secrets he stole from the NSA. It is also worth considering that Snowden’s motivations were not ethical but practical, namely that he was motivated from gain. His future actions will help address this matter.

In general terms, Snowden does bring up the old issue of the conflict of the conscience of the individual with the orders of the state. Assuming, of course, that Snowden truly acted from his conscience. I do not, obviously enough, know the answer to this. However, I do believe that the Prism program is morally dubious (at best) and while it went through all the secret legal processes, I do think a good case can be made that the program violated constitutional rights. But, I will leave this issue to the constitutional lawyers.

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Obama & Leaks

Posted in Ethics, Law by Michael LaBossiere on June 17, 2010
Logo of the United States White House, especia...
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Obama has, in many ways, attempted to define his presidency in terms of doing things differently from his predecessor. One change that is being put into place is that the Obama administration seems intent on cracking down on leaks of classified material. This is supposed to involve a more streamlined process for handling leaks as well as commitment to dealing with leaks rapidly. One rather interesting aspect of the new approach is that the Obama administration seems to be more willing to go after journalists. Naturally, this approach raises numerous concerns.

On one hand, an excellent case can be made for cracking down on leaks. The defense of the United States from foreign and domestic enemies often requires strict secrecy. Leaked information of this sort could do serious harm to the United States. As such, cracking down on leaks seems to be an excellent idea and perfectly legitimate.

On the other hand, there is the concern that the crackdown on leaks will also serve to be a crackdown on those who would expose corruption, incompetence, mismanagement, and other serious problems. For example, a formed NSA official was recently indicted for allegedly revealing a mismanaged computer program.

This nicely reveals the two key concerns here. First, there is the need to ensure that legitimate classified information is properly protected. One way to help reach this goal is to ensure that leaks are swiftly investigated and properly punished.

Second, there is the need to ensure that misdeeds are not allowed to flourish in the shadows created by secrecy. As such, there also needs to be a proper mechanism in place for cases involving legitimate whistle blowing. While it is tempting to say that such cases should always be handled within the cloak of government secrecy, there is the obvious concern that such secrecy will often allow such problems to remain uncorrected. As such, whistle blowers might have to turn to the press to reveal certain problems.

While such whistle blowing might be seen as being against the interest of the United States, this need not be the case. After all, wasting money on useless programs, engaging in deeply flawed operations, or participating in grossly illegal activities do not help the United States become safer. In fact, the opposite is true. As such, those who blow the whistle in cases in which the official channels cannot or will not address the problems should not be treated as criminals. Rather, the investigation should focus on the problem as well as the defects in the official channels that allowed the problem to remain hidden.

As far as the press goes, the general principle should be that if the leaked information exposes misdeeds, corruption or similar problems, then the people involved should be regarded as doing service to the country. If, however, information that should be legitimately kept secret is leaked, then those involved should be regarded as acting in a harmful manner. Of course, officials will tend to believe that exposing their problems or misdeeds is harmful. It would be, of course, to them. But, since they are harming America in this manner, they have no right to expect to be able to hide within the shadows.

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