Is Surveillance by the NSA Just? (deontology, Kant, Ross, and the priority of the right)

nsa bo To say that there has been a vociferous response to the continuing revelations of surveillance conducted by the NSA might be to state the facts mildly; there has been heated debate in the public sphere on the matter, culminating in a presidential address yesterday declaring that (modest) changes would be made. President Barack Obama’s remarks are no doubt due to the vast number of persons who think such surveillance is either wrong and must be ended, or wrong but necessary due to the evil ways of the world. As such, it seems that most persons think there is something unjust and unnerving to such far-reaching surveillance, it is just that one group accepts surveillance as a necessary evil, while the other does not. Looking at the issue in this way allows us to see this contemporary policy discussion as rooted in the ancient discussion of prioritizing the good or the right. I think it uncontroversial to claim that those that prioritize the good over the right are the sort who think that the NSA program is a necessary evil and is not in need of revision, while those that think that the right comes before the good are more likely to think that the NSA program should be greatly curtailed. My intention is to explore whether theories that prioritize the right over the good (deontological views) allow for the NSA’s surveillance program.

(Update: Here is a more recent entry that argues why broad surveillance in general is unjust on egalitarian principles.)

Kantianism
One of the most damning facts against the NSA surveillance program is that, in internal documents leaked by Snowden, the NSA has noted that the vast surveillance state has not had a discernible impact on the prevention of terrorism — all the information gathered has not been used to foil a terrorist attack. Some commentators have noted that perhaps the program is justified by the “peace of mind” its existence provides. On this account, the surveillance does not protect our rights (to life, property, etc.) from being violated by terrorists, it just gives us the good feeling that the surveillance does do this by itself violating less fundamental rights to privacy. Boiled down to this, we see that the good is being prioritized over the right – that is, the happiness provided by the illusion of security is given more weight than the rights given to us (at least) by the law. Kant argued that such a tradeoff is not just because it is contradictory in principle, positing that,

 “Under such a paternal government, the subjects, as immature, children who cannot distinguish what is truly useful or harmful to themselves, would be obliged to behave purely passively and to rely upon the judgment of the head of state as to how they ought to be happy, and upon his kindness in willing their happiness at all. Such a government is the greatest conceivable despotism, i.e. a constitution which suspends the entire freedom of its subjects, who thenceforth have no rights whatsoever (Theory and Practice).

Kant’s thinking here is that the purpose of government cannot be to achieve the happiness of its citizens because men have different ideas of what happiness is, such that laws that prescribe how citizens ought to be made happy revoke all freedom and thus all rights. Kant thinks that the state exists only to create the Right and does so by restricting “each individual’s freedom so that it harmonizes with the freedom of everyone else” (Theory and Practice). The Right is created by the restriction of freedom to the degree that:

The whole concept of an external right is derived entirely from the concept of freedom in the mutual external relationships of human beings, and has nothing to do with the end which all men have by nature (i.e. the aim of achieving happiness) or with the recognized means of attaining this end” (Theory and Practice).

Kant posits that if Right is derived from freedom then Right cannot exist without freedom. A paternal state attempts to have Right based on happiness, such that Good is prioritized over Right. But, if we do not have freedom to decide our happiness then no Right exists in a paternal state. Therefore, Right cannot exist in a paternal state. If Right cannot exist in a paternal state then there is lawlessness, such that the Priority of Good leads to contradiction in that it implies law based on happiness is not law. It follows from Kant’s work, then, that the fact that the NSA surveillance program gives persons “peace of mind” even though it isn’t successful in preventing terrorism, does not justify the program, because such a policy leads to the contradiction that we are governed by law that is not law.

Rossianism
Though his theory of morality is deontological, Ross takes a different approach than Kant, more similar to Locke’s views on rights, positing that a right of person A against person B implies both a duty of B to A, as well as a duty of A to B. The thought is that rights are derived from our moral duties, such that if there is a prima facie right, then it is due to a general prima facie duty. So, if a person has a right to something, then it is because another person has a duty to provide them with that treatment, and as duties are generalized prima facie reasons for action, it follows that duty is a prima facie duty to the person claiming their right, though they might not have a reason to act for that duty at the present time. Like Kant, Ross notes that the purpose of the state is to protect our basic rights, and this duty of the state follows from our having natural fundamental rights, in (the same way as discussed before) their being a balance of duties to rights between interacting parties. But due to this balance of rights to duties, because the individual person has the right to have their basic rights protected by the state, they incur the duty to not violate the rights of others. When they do violate the rights of others, they forfeit their right to have their fundamental rights respected, and thus, the state is justified in punishing them in such a way that violates that right.

It is difficult to foresee how Ross would want to apply his theory of rights and punishment, but it seems to me that given the sort of equivalence in right to duty that he developed, he would hold that to have the intention to violate the rights of others through acts of terrorism would nullify a claim to having a right to privacy. By contrast, a person who is not planning to violate the rights of others has not violated their claim to having their rights respected, such that it does seem to follow from Ross’s position that it would be unjust to spy on citizens who we have good reason to believe are not terrorists. Now, to make that distinction is easier said than done, but I think that given the importance of a proportional respect of rights to duties in Rossianism, it would be advisable to increase the amount of certainty of being a terrorist from 51% to perhaps 90%. After all, Ross did place a high value on the state protecting the rights of persons, and if such surveillance is necessary for protecting these rights then Ross might allow a little leniency in the degree in certainty in order to balance more fundamental rights to life to the less fundamental right to privacy. Still, given the recent releases that the NSA collected data hasn’t prevented any attacks it seems that Ross wouln’t be too eager to concede this leniency.

Conclusion:
Kant’s species of deontology would not allow for the NSA’s surveillance program, at least in its current state of being, it seems, unnecessary to protecting national security interests. Ross’s species seems to allow for a much more restricted and less far-reaching surveillance program, due to a concern for their being a balance of rights to duties.  What has been suggested is not that deontology is inconsistent with the NSA surveillance program or that Kant’s or Ross’s views categorically rule out the justness of the program (I haven’t been arguing that), but that the program as it currently stands, with its modest success rate, is not just. Both Kant and Ross’s view seem to allow for far-reaching surveillance when it is necessary and useful. Recent disclosures suggest that the program has not proven useful, and thus, the violations of our rights to privacy are not justified by the protection of more fundamental rights. At least, not currently.

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