The October 20 interview of Edward Snowden by Professor Lawrence Lessig reviewed the profound legal and moral issues involved, precipitating the question: What have we learned from Snowden's disclosures and the debate that has followed?
Snowden's case (and many others) must be examined simultaneously through a variety of frames: legal, political, moral and organizational. Many contentious cases are precipitated by a technological revolution, in this case that of information technology, as usual outpacing the legal and ethical framework. We seem not to have learned how to anticipate effects of such revolutions.
One of the chief public defenders of the government's bulk collection of Americans' telephone records, deputy attorney general James Cole, as he steps down, frames the problem as one of balancing security priorities with civil liberties. Cole indicates that the hard part is to do both.1 Clearly, a rebalancing of these priorities needs to be thought out, using all four frames enumerated above. Again, we had not learned how to sense that while the current balance had been sustainable in a particular political environment, it could not remain sustainable morally. Snowden articulated those reasons and why the system could not self-correct.
Much of the analysis of the Snowden case has had a legal and political orientation. The moral analysis contained in Snowden's narrative suggests at least two ethical concerns. The first is an obligation to prevent public harm, including invasion of privacy and a loss of trust in one's government. The second ethical concern is a responsibility to set right the harm from NSA's practices because he, like all other members of that organization, was complicit in its actions, although he did not make intelligence policy and not everyone agrees that what the NSA was doing was evil. But it is this sense of moral responsibility that characterizes many good-faith whistleblowers, rarely rewarded but very difficult to extinguish. We seem unable to learn to acknowledge their virtues.
Two additional points relevant to a moral analysis have been raised in the philosophical literature. First, since a public employee serves the entire public, protecting its freedoms, interests and the common good, the public deserves his first loyalty.2 Such a perspective might well be challenged, but is similar to professionals whose ethical duty to their clients supersedes loyalty to their employing organization.
A second is consideration of Snowden's actions as civil disobedience—a public, non-violent, conscientious political act used to bring about a change in law or policy, considered by some to be a moral right, practiced with suitable constraint. Respect for persons as autonomous agents requires that the state acknowledge a moral right to public disobedience on the part of its citizens.3 Civil disobedience publicizes issues that receive insufficient attention and/or is a means of shocking the polity out of complacency to recognize a perspective or an issue. It can be used to create will-formation for action in the case of deliberative inertia.4 If used with sound judgment, it can help to maintain and strengthen institutions.
Snowden's actions well fit this definition with the goal of creating a peaceful transformation of U.S. policy and of the National Security Agency itself.5
Consequences of Our Current Stance Toward Whistleblowers
As suggested in the October 17 blog post, Snowden, Institutional Corruption, & the “Vilified Whistleblower,” by Dana Gold, vilifying and banishing whistleblowers is the statistical norm. Never is the institution at fault or a structural problem of improper incentives blamed. Discrediting whistleblowers keeps us from understanding the lessons they bring.
A relevant example of a system mightily resistant to learning the lessons of whistleblowers is research misconduct, defined in the biomedical sciences as fabrication, falsification and/or plagiarism (FFP) in proposing, performing or reviewing research or in reporting research results (42 CFR part 93, 2005). The federal regulations require a complainant; no other monitoring such as regular audits is required of institutions receiving Public Health Service funds to ensure that the research is free of FFP. Two-thirds of complainants experience negative outcomes on employment, health and family. Because of inadequate protection against this level of retribution and the lack of institutional systems to catch the deceptions whistleblowers sometimes reveal, research misconduct is significantly underreported.
Reports of high-profile scandals involving individuals who have fabricated research in as many as 80 publications are accelerating across the world. In the U.S., draft regulations for whistleblower protection were published a decade ago, greeted by a firestorm within the scientific community, and were never issued.6 These events should send a message that we have not yet learned to deal with the basic problem.
Framing the issue of research misconduct as the bad act of an individual scientist, student, or staff member simply protects the myth that institutions and the incentive structure in science are blameless and that research subjects and patients are not harmed.
As in the Snowden case, accountability measures in scientific research, traditionally peer review and the assurance that errors would eventually be found and corrected, are insufficient. In addition, self-regulation and current regulatory attempts are feeble and ineffective, leaving much room for temptation to bias findings or worse. Checks and balances are considerably insufficient.
In this area of policy there has been no Edward Snowden to force us to understand what is at risk in the current system. The public remains unaware of the degree of unreliability of science from research misconduct and other practices such as widespread biased reporting of research results, which truly harm them. And no one measures the degree and reach of that harm because knowing would challenge our assumptions about the morality of the system. No one questions the moral stance of those who go along with the system. As Greenwald indicates in his analysis of the Snowden case, refusal to dissent is a sign of character flaw or moral failure.7
Snowden's narrative is compelling. Have we done our due diligence, in the spirit of deliberative democracy, through the multiple frames available to us, to reach a balance between civil liberties and security, preventing public harm and complicity, and valuing the integrity and highly developed sense of morality that whistleblowers bring to the improvement of our institutions?