The Ethics of Whistleblowing: PRISM Evaluated

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MELBOURNE: 17 JUNE 2013 - It seems that whistleblowing is constantly in the headlines in Australia and overseas.  Last week saw widespread coverage in Australia of hostile questioning by Senators regarding perceived failures by the Australian Securities and Investments Commission (ASIC) to react in a sufficiently timely manner to Mr Jeff Morris and other whistleblowers within Commonwealth Financial Planning (CFP). Both last week, and this week, has seen global coverage of the trial of perhaps the world’s most famous whistleblower Private First Class Bradley Manning.  The military trial is occurring in Fort Meade Maryland, three years after Manning leaked thousands of confidential military documents to Wikileaks, with media labelling of Manning ranging from hero to traitor. In recent days a new name has been added to the pantheon of celebrity whistleblowers, 29 year old US citizen Mr Edward Snowden.  Mr Snowden is a former technical consultant for the US Central Intelligence Agency (CIA), who in recent years has been working at the US National Security Agency (NSA) employed by contractors such as Dell and most recently Booz Allen Hamilton.  The reason for Mr Snowden’s sudden celebrity is that through a series of interviews with the UK Guardian newspaper he has revealed extensive details regarding PRISM, which Mr Snowden claims is a secret classified data mining operation which gathers for the NSA metadata on millions of people in the US and overseas from many of the world’s largest internet service providers.

There are of course differences regarding these whistleblower cases which are just three of the literally hundreds in recent years, and different people and personalities involved with them, but what they have in common is that they highlight the deeply contested nature of whistleblowing as an activity and the uncertainty associated with how society should deal with the phenomenon.  In particular, how facilitative law and other regulatory mechanisms should be towards whistleblowing in a digital age, when as the cases of Manning and Snowden so clearly demonstrate, a single individual with sufficiently high access to sensitive information can have global impact.

First some background on PRISM, and unsurprisingly there are contesting views on what PRISM is and what it is supposed to do.  Based on interviews with Edward Snowden and material supplied by him to its reporters, The Guardian newspaper reports that PRISM is able to reach directly into the servers of the participating companies which include some of the world’s largest telecommunications companies such as Apple, AOL, Facebook, Google, Microsoft, Skype and You Tube thereby obtaining both stored communications as well as perform real-time collection on targeted users.  Thus the Guardian describes how email, video and voice chat, videos, photos, voice-over-IP (Skype, for example) chats, file transfers, social networking details might be some of the metadata sources that PRISM scoops up from millions of individual in the US and elsewhere in the world. The Washington Post describes PRISM as a top-secret intelligence gathering program administered under the US Foreign Intelligence Surveillance Act (FISA) and approved by federal FISA judges.  Under a series of orders from these FISA judges which remain classified: ‘..the court defined massive data sets as “facilities” and agreed to certify periodically that the government had reasonable procedures in place to minimize collection of “U.S. persons” data without a warrant.’  However in the same article, Steve Dowling a spokesman for Apple declared: ‘we have never heard of PRISM…’ and Joe Sullivan, chief security officer for Facebook stated: ‘we do not provide any government organization with direct access to Facebook servers.’ So, there seem to be conflicting interpretations even within the same newspaper article and it is difficult to be certain about how abusive or pervasive the PRISM program may be.

US authorities have been quick to refute the allegations being made about PRISM in mass media and social media outlets, especially those in The Guardian and the Washington Post.  For example unsurprisingly James R Clapper, Director of National Intelligence: ‘Over the last week we have seen reckless disclosures of intelligence community measures used to keep Americans safe.  In a rush to publish, media outlets have not given the full context – including the extent to which these programs are overseen by all three branches of government – to these effective tools.  In particular, the surveillance activities published in The Guardian and The Washington Post are lawful and conducted under authorities widely known and discussed, and fully debated and authorized by Congress. Their purpose is to obtain foreign intelligence information, including information necessary to thwart terrorist and cyber attacks against the United States and its allies.  Also Mr Robert Mueller Director of the US Federal Bureau of Investigation (FBI) confirmed before a US congressional hearing that Mr Snowden ‘was the subject of an ongoing criminal investigation.

It is distinctly possible that the FBI may soon bring criminal charges and extradition proceedings against Mr Snowden because he remains in hiding in Hong Kong, which is where he made his initial revelations in interviews with reporters from The Guardian after leaving his home in Hawaii on 20 May 2013.  The fact that he is in Hong Kong is of itself causing some diplomatic ripples with the state-run China Daily quoted widely in other media outlets that the Snowden case is: ‘..certain to stain Washington's overseas image and test developing Sino-US ties…How the case is handled could pose a challenge to the burgeoning goodwill between Beijing and Washington given that Snowden is in Chinese territory and the Sino-US relationship is constantly soured on cybersecurity.’

Media outlets quote Chairman of the US House Intelligence Committee Republican Congressman Mike Rogers labelling Snowden a ‘traitor’ and the ranking Democrat of the Intelligence Committee Dutch Ruppersberger querying Snowden’s motives in going to China, a country he alleges: ‘..is cyber attacking us every single day, taking billions of dollars of American business data.’ Such vociferous criticism is not unusual in the discourse on espionage and in recent times there has been substantial coverage in the US and here in Australia of alleged hacking by Chinese firms and government agencies, including allegedly of the blueprints of the new headquarters of the Australian Security and Intelligence Organisation (ASIO) in Canberra. Australian media reports quote officials associated with Australia’s Defence Signals Directorate as stating that Australia is ‘..dependent on the intelligence provided by the NSA and the broader US intelligence community’ and that ‘Australia benefits immeasurably’ from cooperation with the NSA, the UK’s Government Communications Headquarters (GCHQ), New Zealand's Government Communications Security Bureau and Canada's Communications Security Establishment, a network often referred to as the five eyes.

So, unsurprisingly it seems that data surveillance and other spying techniques are open to multiple interpretations and when a contested activity such as whistleblowing becomes part of the equation then the judgement issues become even murkier.  It seems at this stage that there are multiple interpretations of Mr Snowden’s motivations.  He admits that he is ‘a spy’, that he does not know what will happen to him, although he expects that it will be ‘nothing good’, and that he made his revelations because: ‘the NSA has built an infrastructure that allows it to intercept almost everything….I can get your emails, passwords, phone records, credit cards. I don't want to live in a society that does these sort of things.’

Many view Snowden as a hero taking a stand against what they perceive as a dangerously pervasive state surveillance infrastructure that has mushroomed in power and influence as part of the War on Terror since September 11 2001.  For example, a survey of 1,942 British adults found that 41% agreed with the statement that Snowden was: ‘a hero willing to sacrifice himself for the public good’ whilst 23% disagreed. Other commentators such as David Brooks of the New York Times, whilst sensitive to the moral dilemma that Snowden felt he faced, believe that Snowden’s actions, like those of other whistleblowers in strategically sensitive situations such as Bradley Manning betray: honesty and integrity, friends, employers, their oaths, the US Constitution, the cause of open government and the privacy of all, thereby undermining democratic structures of accountability.

The revelations of whistleblowers may not always be accurate, nor motivated by unselfish concerns and sometimes may hamper, rather than help the efforts of law enforcement against harmful behaviour. This reality impacts upon debates about whether governments, international organisations, business actors, local communities, or indeed any social, political or economic grouping establish structured incentives to promote whistleblowing  The fundamental question centres around whether whistleblowing serves the public good.  The issue of whistleblowing is inherently one of uncertainty regarding definition, as well as being a site of fluctuating contests between different value positions and assumed positions of vested interest.  As the Snowden saga continues to unfold on a daily basis in front of the world media these uncertainties and contests will continue to shape judgements not just on Edward Snowden, but also on other whistleblowers closer to home.

 

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