(Part 1)
What is Freedom? Doubtless, it is one of the most relevant and controversial subject in the history of philosophy and political thought. It affects human will, morals and the relationship between individuals and political authority; it is controversial since the term freedom is articulated in various concepts according to different theories and thinkers. Someone links liberty to state of nature or social contracts, others relates it to either individual or collective will.
Broadly speaking, people have always been subjected to constraints by several forms of power or central authority but, at the same time, there have always been an aspiration for freedom, since the Roman servile wars to the 2011 Arab uprisings. As a result, there is a sort of innate complementary relationship between liberty and coercion or limitations, at least.
Indeed, a freeman can do whatever he want on condition that he respects laws and other men’s freedom. To sum up, liberty could be conceived as the freedom to act in absence of coercion. As the tradition of the liberal thought suggests, this definition assumes the presence of two spheres of liberty: positive and negative.
The former concerns the power and resources to do something according to your will, the latter regards freedom from external restraint and arbitrary exercised by political authority.
The first aim of this paper is to analyse critically the relationship between the individual and the power of the state. So, it is useful to take into account the meaning of negative liberty. As liberty “from”, it is an hub which gathers all those liberties restricting the power of the state over the life of the citizens, for this reason called civil liberties. They include freedom of association, freedom of assembly, freedom of religion, freedom of speech, freedom and secrecy of correspondence and so on.
The last one definitely evokes a wider concept, i.e. the right to privacy. Indeed, the second purpose of this paper is to check the vigour of that right in light of Edward Snowden’s disclosures about the US National Security Agency (NSA) and its international partners’ global surveillance system of foreign nationals and US citizens. In June 2013, the Guardian exposed a top secret court order showing that the NSA had collected phone records from over 120 million Verizon subscribers. “The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing”[1]. This question acquires greater seriousness owing to the longstanding debate about the proper extent of the US government spying powers. “Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama”[2].
Snowden’s revelations shocked global public opinion. They shed light on the presence of a massive surveillance system which monitors private citizens’ life by exploiting new, increasingly advanced, technologies. Privacy as illusion, freedom at risk, are the refrain of the umpteenth governmental outrage. Now people, who have lately replaced the dog with the sophisticated smartphones on the list of man’s best friends, perceive their communication tools as inspection devices.
As Orwell might say, “Big Brother is watching you”. Actually, all the surveillance affair seems to be written by Orwell’s pen. “All letters were open in transit”[3], said Nineteen Eighty-Four narrator. Nowadays, the technological progress has multiplied the possibilities of surveillance and data collection, obviously going beyond Orwell’s imagination. However, a comparison between reality and fiction is feasible.
“If living unfreely but comfortably is something you are willing to accept, and I think many of us are, it’s the human nature, you can get up every day, you can go to work, you can collect your large paycheck for relatively little work against the public interest, and go to sleep at night after watching your shows. But if you realize that’s the world that you helped create, and it’s going to get worse with the next generation, and the next generation, who extend the capabilities of this sort of architecture of oppression, you realize that you might be willing to accept any risk, and it doesn’t matter what the outcome is, so long as the public gets to make their own decisions about how that’s applied”[4].
In this part of his first interview, published by The Guardian, Edward Snowden seems to embody to some extent Winston Smith, the main character of Orwell’s Nineteen Eighty-Four, or his feelings, at least.
Snowden’s disclosures
“Taken together, the revelations have brought to light a global surveillance system that cast off many of its historical restraints after the attacks of Sept. 11, 2001. Secret legal authorities empowered the NSA to sweep in the telephone, Internet and location records of whole populations”[5].
In 2013, several media reports made public the NSA and other international partners’ global surveillance of US citizens and foreign nationals after a leak of classified documents. “The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell”[6].
In June, He gave an interview to the Guardian reporters in Hong Kong. The first leaks revealed that NSA was collecting data from Verizon (an American broadband and telecommunications company) for each phone call placed in the USA and that it was looking at the private data of foreigners and American citizens by using a software called PRISM and the cooperation of companies like Apple, Facebook, Google, Yahoo. Intelligence agencies was spying millions of lives, according to Snowden. “I, sitting at my desk, certainly had the authorities to wiretap anyone, from you or your accountant, to a federal judge or even the President, if I had a personal e-mail”[7], he said.
Then, the scandal spread like wildfire. “America’s NSA intelligence service allegedly targeted the European Union with its spying activities”, according to der Spiegel information provided by Snowden’s documents. “The US placed bugs in the EU representation in Washington and infiltrated its computer network. Cyber attacks were also perpetrated against Brussels in New York and Washington”[8]. “The classified documents…demonstrate[d] how systematically the Americans target[ed] other countries and institutions like the EU, the International Atomic Energy Agency (IAEA) in Vienna and the UN. They show how the NSA infiltrated the Europeans’ internal computer network between New York and Washington, used US embassies abroad to intercept communications and eavesdropped on video conferences of UN diplomats. The surveillance is intensive and well-organized – and it has little or nothing to do with counter-terrorism”[9].
In addition to millions of US intelligence files, Snowden’s cache enclosed thousands of Australian, British and Canadian classified documents which he had accessed through the Five Eyes network[10]. According to those papers, “The German, French, Spanish and Swedish intelligence services have all developed methods of mass surveillance of internet and phone traffic over the past five years in close partnership with Britain’s GCHQ[11] eavesdropping agency”[12].
At that time, people had to deal with the largest spying operation ever, the biggest violation of the right to privacy ever. The US government, in complete secrecy, created a pervasive spying apparatus aimed at keeping an eye not only on its own citizens, but also on all people worldwide. It corrodes the ability to use the internet with any trace of privacy. It gives the US government the immense power of monitoring everyone without authority. The construction of a worldwide electronic surveillance apparatus obviously is extremely dangerous. People around the world were utterly unprepared to the idea that all of their telephonic and internet communications were being gathered, stored and scrutinized. “The bulk monitoring [was] carried out through direct taps into fibre optic cables and the development of covert relationships with telecommunications companies. A loose but growing eavesdropping alliance ha[d] allowed intelligence agencies from one country to cultivate ties with corporations from another to facilitate the trawling of the web, according to GCHQ documents leaked by the former US intelligence contractor Edward Snowden”[13].
In the meantime, in an attempt to defend the administration, Obama and Kerry, the secretary of State, evoked security reasons to justify the behaviour of the intelligence agencies: “After the 9/11 attacks”, Kerry said, “the US and others realised that we are dealing with a new world where people are willing to blow themselves up. There are countless examples. Look at Nairobi. What if you were able to intercept that? We have prevented airplanes from going down and buildings from being blown up because we have learned ahead of time of such plans”[14].
Freedom at risk
“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”. (Human Right Declaration, art.12)
After the release, mass protests against government surveillance were reported in many parts of the world.
In the United States, people created a political movement known as “Restore the Fourth” that gathered momentum quickly. It is an American grassroots organization that seeks to strengthen the fourth amendment to the United States Constitution and end any programs that violate it[15]. The fourth amendment specifically points out that “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”[16]. So, the authorities need at least a probable cause and a warrant. Actually, the United States Foreign Intelligence Surveillance Court gave consent to launch PRISM, according to Snowden’s top secret files[17], providing a legal framework to NSA surveillance operations. In any case, even though they were legal, they were secret, therefore in opposition to the Fifth amendment to the US Constitution. It underlines that “No person shall … be deprived of life, liberty, or property, without due process of law” and the right to privacy doubtless is a form of liberty. Consequently, the indiscriminate surveillance and accumulation of private data is unconstitutional.
Protests also spread in Europe where the right to privacy is a highly developed area of law. The Data Protection Directive regulates the processing of personal data within the EU. The US has no data protection law that is comparable to it. In Germany, demonstrations against national and international surveillance, called “Stop Watching Us”, increased after that documents revealed Merkel’s mobile number had been monitored for more than ten years[18][19].
Illegally registered spying operations, according to der Spiegel, existed in other places around the world, including Madrid, Paris, Prague and Rome. NSA also had monitored the President of Brazil, i.e. Dilma Rouseff’s telephonic communications and e-mails[20], who has cancelled a state visit to Washington after the disclosure that the NSA was scrutinizing a lot of Brazilian communications data, including from the state-run oil company Petrobras. Therefore, Germany and Brazil agreed to conduct efforts at the UN level by drafting a UN general assembly resolution calling for the right to privacy on the internet. Although non-binding, the resolution, adopted on 18th December, is one of the strongest condemnations of this “global big brother”.
Obama administration defended its own reasons claiming that it was only tracking metadata such as the time and place of phone calls, and not the content. This defence is inconsistent. Putting aside the international implications of the surveillance system, this justification would be based on the Patriot Act (Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act), signed into law by G.W.Bush. Nevertheless, maintaining that every phone call, made or received by an American citizen, is relevant for a specific counter-terrorism inquiry does not make any sense.
And even if it did, are we available to exchange freedom for security? Certainly, government has to balance them and people have to demand it.
Snowden’s revelations of bulk surveillance of the communication data could have the unintended consequence of changing the behaviour within society. Just the idea that someone might be listening could have the power to change people’s way of thinking. Monitoring, controlling, observing is a form of power and can act as a restriction of freedom. NSA and US government created a global surveillance system which overreached its legal competences and ethical boundaries. They combined secrecy with a sense of tension by using terrorism as a “bogeyman”. And by frightening people, the bogeyman contributed to give the security an overwhelming priority. Consequently, terrorism became a key to carry on any kind of operation aimed at assuring safety by observing everyone’s life.
Transparency could restore freedom by acting as counterbalance. “My sole motive is to inform the public as to that which is done in their name and that which is done against them”, said Edward Snowden in his first interview on June, “I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they are secretly building”. Disclosures have been a means to tighten the link between people and governmental institutions.
[1] Glenn Greenwald, “NSA collecting phone records of millions of Verizon customers daily” in the Guardian, 6/06/2013, http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order.
[2] Ibidem.
[3] Orwell, George (1949). Nineteen Eighty-Four. A novel. London: Secker & Warburg.
[4] Glenn Greenwald, Ewen MacAskill and Laura Poitras, “Edward Snowden: the whistleblower behind the NSA surveillance revelations” in the Guardian, 9/06/2013, http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance.
[5] Gellman B., “Edward Snowden, after months of NSA revelations, says his mission’s accomplished”, The Washington Post, 24/12/2013, http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html.
[6] Glenn Greenwald, Ewen MacAskill and Laura Poitras, “Edward Snowden: the whistleblower behind the NSA surveillance revelations” in the Guardian, 9/06/2013, http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance.
[7] Ibidem.
[8] Laura Poitras, Marcel Rosenbach, Fidelius Schmid and Holger Stark, “Attacks from America: NSA Spied on European Union Offices” in der Spiegel, 29/06/2013, http://www.spiegel.de/international/europe/nsa-spied-on-european-union-offices-a-908590.html.
[9] Laura Poitras, Marcel Rosenbach and Holger Stark, “Codename ‘Apalachee’: How America Spies on Europe and the UN” in der Spiegel, 26/08/2013, www.spiegel.de/international/world/secret-nsa-documents-show-how-the-us-spies-on-europe-and-the-un-a-918625.
[10] Five Eyes is an intelligence alliance legally based upon the United Kingdom – United States of America Agreement (UKUSA), a multilateral agreement for intelligence cooperation between the United Kingdom, the United States, Canada, Australia, and New Zealand.
[11] Acronym of Government Communications Headquarters. It is a British intelligence agency responsible for providing signals intelligence and information assurance to the British government and armed forces.
[12] Julian Borger, “GCHQ and European spy agencies worked together on mass surveillance” in the Guardian, 1/11/2013, http://www.theguardian.com/uk-news/2013/nov/01/gchq-europe-spy-agencies-mass-surveillance-snowden.
[13] ibidem.
[14] Dan Roberts, Spencer Ackerman and Paul Lewis, “US surveillance has gone too far, John Kerry admits” in the Guardian, 31/10/2013, http://www.theguardian.com/world/2013/oct/31/john-kerry-some-surveillance-gone-too-far.
[15] Huffington Post Live, 28 June 2013, http://www.huffingtonpost.com/2013/06/28/restore-the-fourth_n_3519600.html?
[16] Official Bill of Rights in the National Archives, www.archives.gov/exhibits/charters/bill_of_rights_transcript.
[17] Glenn Greenwald, “NSA collecting phone records of millions of Verizon customers daily” in the Guardian, 6/06/2013, http://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order.
[18] Sebastian Fischer, “Merkel’s Phone: Spying Suspicions Put Obama in a Tight Spot” in der Spiegel, 24/10/2013, http://www.spiegel.de/international/world/suspicions-of-us-spying-on-merkel-phone-awkward-for-obama-a-929692.html
[19] Kevin Rawlinson, “NSA surveillance: Merkel’s phone may have been monitored for over 10 years” in the Guardian, 26/10/2013, http://www.theguardian.com/world/2013/oct/26/nsa-surveillance-brazil-germany-un-resolution.
[20] Cristina Tardáguila and Júnia Gama, “EUA espionaram Dilma” in O Globo, 1/09/2013, http://oglobo.globo.com/pais/eua-espionaram-dilma-9782118.