Between security without privacy and privacy without security, which one would you opt for? To answer it, we shall first ask ourselves which is more important, security or privacy? In this essay, I shall focus on covert government surveillance system in particular, the United States, to decide if it is ethical to intrude into the privacy of potential perpetrators in the name of upholding national security using the analysis of various ethical theories.
Introduction to Carnivore (Carnivore is not only about meat-eater :P)
The United States government has aggregated information in order to detect and apprehend suspected criminals or to improve national security. Because the individuals being observed are suspected of misconduct, they are not alerted or asked for permission before the surveillance begins. So the question arises, does covert surveillance violate any of the civil rights?
One such system to facilitate covert surveillance by the Federal Bureau of Investigation (FBI) is Carnivore, a packet sniffer software programmed to eavesdrop on criminal and terrorist activities by identifying and recording packets originating from or directed to a particular IP address. Basically, it is a tool capable of tapping into and monitoring email and electronic communications.
History of Carnivore
Carnivore was developed in the late 1990’s and only came into public by accident after it had been in operation for two years. (Note that the FBI had stopped using Carnivore since late 2001, replacing it with commercial software capable of performing the same functions.) Shortly after Carnivore came under public attention, it has drawn significant criticisms from civil rights groups like the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC) to name a few. Detractors are generally concerned with the potential abuse of Carnivore’s capabilities to undermine civil liberties and the notion of free Internet.
While FBI have long had the ability to monitor private telephone conversations with the support of various technological devices, electronic communications was believed to be secure from monitoring by the government. However, the advent of Carnivore had extended the reach of the FBI into cyberspace that everything is under the jurisdiction of the state.Civil rights groups are critical on the monitoring of private electronic communications and the breadth of the government’s access to such information. Although civil rights groups recognize the governmental interest in preventing criminality, they believe, nevertheless, that boundaries must be set for FBI.
Procedures to follow for putting Carnivore into action
In order for the FBI to put Carnivore into action, they must first meet certain threshold requirements justifying their need for surveillance to obtain a court permission to access electronic communications of a suspected individual. Court permission is in the form of court order that specifies the communication that can be captured and the duration of the surveillance, to be taken to the respective Internet Service Provider (ISP). These thresholds exist to balance civil liberties with security concerns and criminal prosecution interests.
Let’s go back to our question, is it ethical to intrude into the privacy of potential perpetrators in the name of upholding national security? How effective is Carnivore as a crime and terrorism-prevention tool to strengthen national security? Are there alternatives to prevent criminality activities instead of leveraging on Carnivore?
Let’s us first examine the ethical dilemma between security and privacy using the Act Utilitarianism Evaluation. We consider the anticipated consequences of the usage of Carnivore on the various stakeholders: FBI, potential perpetrators and citizens at large. Yes, Carnivore is capable of enhancing FBI’s investigation capabilities and this is a positive consequence. For instance, Carnivore Diagnostic Tool has helped to secure the convictions of more than 25,600 felons. Since FBI has to first seek permission to monitor a suspect, it had already proved in some ways that the suspect could be involved in some criminal activities. What is most likely to happen is that electronic surveillance will confirm that the suspect is indeed involved in wrongdoings. Electronic evidence can warrant an arrest of the suspect and other conspirators in order to stop planned illegal activities from occurring, a positive consequence. Moreover, the knowledge that FBI has the capability to stop the occurrence of illegal activities, gives U.S citizens a peace of mind and may even deter potential perpetrators from plotting criminal activities, which entails several positive consequences. Even if the result of surveillance differs from the expected outcome (in the case where the suspect is found to be innocent), there are neither positive nor negative consequences to both FBI and the suspect. The suspect can clear his/her name so that FBI can stop investigating him/her. Since, Carnivore must be configured according to the specification provided in the court order such that FBI can only access with no more than the information permitted, it is least likely to invade the privacy of the suspect.
However, since Carnivore can be remotely controlled, it runs the risk of both intentional and unintentional unauthorized acquisition of electronic communication information by FBI personnel and the risk that someone else might be able to hack into it. This would result in several negative consequences. Although Carnivore must be configured in accordance to the court order, filtering out extraneous information requires some surveillance of the very information to be filtered. In other words, once Carnivore is installed into the suspect’s ISP, all electronic communications will be at least scanned through once, undermining the privacy of the suspect. Again, I believe it is extremely challenging to build a filtering system that extracts only the court-authorized information.
Whether the total happiness (total benefits) outweigh the total unhappiness (total costs) really depends on the weights assigned to each of the possible benefits and harms we have considered. All in all, I would think that the total benefits outweigh the costs. I understand that it is possible for FBI to intrude on the privacy of innocent parties, but what is privacy if we do not even have the fundamental security? At least FBI is regulated and I believe they are not entitled to release confidential information of anyone unless appropriate. If FBI upholds privacy instead of security, I can see the future of cyber criminality which threatens our privacy to even greater heights.
From the perspective of Rule Utilitarianism, if every country’s government agency performing similar functions as the FBI adopts Carnivore, it may well become the conventional and eventually, the foremost procedure to take when investigating a suspect. Thus, neglecting other equally important physical procedures that may in some ways contribute to the result of the investigation. This can be considered an over reliance on Carnivore that ultimately limit the investigation capabilities of the relevant authorities, resulting in a harm. On the flip side, if Carnivore serves as a complement to physical investigation procedures and not a substitute by every country’s relevant authority, the security of the entire world population can be greatly heightened, benefitting every citizen.
The possibility that someone else might just hack into Carnivore poses a tremendous threat. Since Carnivore can be remotely controlled, if somehow, someone knows how to hack into a nation’s Carnivore, he can extend his hacking competency to other nations without being noticed. Hackers who are up to no good, could abuse the information, creating havoc across the nations which results in more harm. Notwithstanding, the benefit of embracing Carnivore to uphold security still outweighs the harm. Hence, we conclude that it is right to intrude into the privacy of potential perpetrators in the name of upholding national security.
Social Contract Theory
Analyzing the ethical dilemma between security and privacy using the Social Contract Theory, rational people would agree to monitoring the suspect as security is envisage to be of utmost concern. Since, to some extent that the FBI has proven the criminality of the suspect, it is reasonable to monitor his electronic communication even if it compromises his privacy. After all, security can still be achieved without much intrusion into the suspect’s private life as only relevant information is tapped into. Hence, the intrusion into the privacy of potential perpetrators to uphold national security is right.
Let’s now consider the ethical dilemma using the Kantianism. Based on the first formulation of the Categorical Imperative, we universalize it. What would happen if all government agencies employ the Carnivore? No longer will anyone trust the Internet and people will be unlikely to transfer confidential information over the Internet, making it impossible to find proof. Hence the proposed rule is self-defeating, and it would be wrong for FBI to adopt Carnivore. Based on the second formulation of the Categorical Imperative, there might be a possibility that FBI may monitor the wrong ‘suspect’, but nonetheless, monitoring electronic communication can confirm and clear their suspicions. However, monitoring suspects (who might be in fact innocent) is still wrong as it is like treating them as a means to an end.
From the points of view of Act Utilitarianism, Rule Utilitarianism and social contract theory, we have concluded that it is right to intrude into the privacy of potential perpetrators in the name of upholding national security. Only Kantianism takes the opposing view, but nevertheless, in my opinion, I would think that achieving security is the right and foremost action to take.
Covert Government Surveillance. Ethics for the Information Age, Fourth Edition, Michael J.Quinn
CARNIVORE IN CYBERSPACE: EXTENDING THE ELECTRONIC COMMUNICATIONSPRIVACY ACT’S FRAMEWORK TO CARNIVORE SURVEILLANCE, Geoffrey A. North. http://cyber.law.harvard.edu/privacy/Carnivore–2002%20article%20by%20North.htm
Carnivore Surveillance System.http://www.accelerated-promotions.com/consumer-electronics/usa-patriot-act-carnivore.htm