In defence of privacy

During his meeting with President Xi Jinping a couple of weeks ago, US President Barack Obama repeated the oft-heard accusation that China was engaged in cyber-attacks and cyber-espionage against the US. The truth is that Obama authorised a secret US programme of surveillance of millions of Americans, and cyber-intrusions into hundreds of Chinese government computers and other such systems across the world.

In the case of former National Security Agency contractor Edward Snowden, the US is again accusing others of its own misdeeds. High-level US officials – with the media again in tow – are accusing Snowden of “treason” for revealing the gigantic ambit of the US’s domestic and global cyber-surveillance and cyber-spying.

Snowden’s crime, if any, pales in comparison with the actions of US officials who authorised and operated the cyber-espionage programme. The programme is not only a violation of the sovereignty of independent nations, it is also a violation of the US Constitution.

The Bill of Rights of the US Constitution, and its well-established legal interpretations, forbid mass intrusions into privacy. Only a court order, based on “reasonable cause” for suspecting an individual to have committed a crime, can allow intrusion into the privacy, home, documents or other aspects of that person’s life. The massive surveillance of phone calls, e-mails and online actions of millions of Americans clearly violates the Constitution, and can, without exaggeration, be called “treason”.

The US president, upon taking office, takes an oath to “protect and defend the Constitution”. Members of Congress have similar obligations. Yet many of them have lashed out at Snowden, instead of criticising the programme that has violated one of the most basic democratic rights of Americans.

Fortunately, there are exceptions. Former US vice president Al Gore has said the NSA surveillance programme “in my view violates the Constitution. The Fourth Amendment language is crystal clear [on this matter]”.

Congressman Ron Paul has also spoken out, saying the problem is not Snowden but what he has revealed: the violation of the US Constitution.

Of course, there are people who claim cyber-surveillance and cyber-espionage are necessary to prevent terrorism. This argument is absurd. To begin with, no one believes that China is involved in terrorism, yet hundreds of the cyberattacks have been aimed at China. Germany, the European Union country most targeted by the surveillance programme, is not involved in terrorism either.

As Ivan Eland of the conservative Independent Institute in the US says: “The US Constitution makes no exception for national security, and terrorism specifically.” And he emphasises that the chances of an American being killed by a terrorist are “about the same as getting killed by an asteroid or lightning. Terrorism is a very rare event.”

Snowden was asked in Hong Kong about the anti-terrorism argument used to justify the massive surveillance programme. He said: “We managed to survive greater threats in our history ... than a few disorganised terrorist groups and rogue states without resorting to these sorts of programmes. It is not that I do not value intelligence, but that I oppose omniscient, automatic, mass surveillance. That seems to me a greater threat to the institutions of free society than missed intelligence reports.”

Finally, three former NSA employees praised Snowden in an interview with USA Today, and corroborated key points made by him. All three previously held important positions in the NSA, and supported Snowden’s claim that there is massive and illegal surveillance of US citizens’ online and telephone communications, and that he has given evidence of an “institutional crime”.

 

The author is a Canadian scholar living in Beijing.