The Ethics of the NSA Mass-Surveillance Program
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Introduction One of the most explosive scandals of the 21st century was involved the National Security Agency (NSA), and the revelations that the agency had set up a robust, warrantless mass surveillance program in the years after the 9/11 attacks. Designed to pick up bits of intelligence that could be used in order to thwart future 9/11 attacks, critics of the program argued that not only was it unconstitutional given the lack of warrants obtained prior to engaging in the program, but that it was ineffective at stopping any kind of real terrorism. Supporters pushed back that the program was an essential tool for fighting terrorists who had become more advanced digitally, often using the internet in order to communicate with each other. Much of the discussion on the program related to the ethical appropriateness of the NSA’s activities. This paper will summarize the NSA’s surveillance program and discuss it from the perspective of utilitarianism and Kantian ethics; in addition, the paper will discuss the author’s personal viewpoint of the program.
Summary of the Program The NSA spying program, named the “Terrorist Surveillance Program” by the New York Times, focused on monitoring the communications of between 500 and 1000 people within the United States with suspected ties to Al-Qaeda (Dunn, 2015). Many of these individuals were American citizens, and no warrants were obtained prior to spying on them. The method of spying was to use technology in order to gain access to metadata which could then be keyword searched by NSA analysts in order to find suspect topics. The NSA installed fiber optic splitters in key data junctions throughout the United States, totaling between 10 and 20 data junctions (Lawson, 2008). These fiber optic splitters gave the NSA access to billions of emails without the knowledge of the senders. Similarly, the data splitters could gain access to phone calls and phone numbers of millions of unsuspecting Americans. This data was subsequently analyzed using the Naurus Semantic Traffic Analyzer, which essentially key word searched metadata in order to find terrorist related patterns and topics which could then be used as evidence to focus on individuals more closely (Dunn, 2015). This data gathering and analysis was conducted with no oversight, with no warrants provided.
Applying Utilitarianism A first ethical theory that is pertinent to this case is utilitarianism. This ethical perspective argues that the ethical nature of a decision is based on the ultimate outcome associated with the choices made, rather than the choices themselves (Shaw, 2016). In essence, utilitarianism can be summed up by the phrase “the ends justify the means”. Proponents of this theory argue that if an action is taken that appears unethical in the process, this does not necessarily mean that the actions are unethical; it can only be judged based on the outcome. A simple example of utilitarianism is seen in harvesting an organ from a criminal in order to save a person who then goes on to cure cancer. On the surface, stealing an organ from anyone would appear unethical, but in this case the ultimate outcome saves millions, thus making the action ethical. Utilitarianism is the ethical theory that tends to be preferred by proponents of the NSA’s Terrorist Surveillance Program. The belief is that if the surveillance program is able to stop a terrorist attack before it occurs, it will save lives. As such, the outcome of the surveillance program is ethical, even though the process of mass surveillance tramples on the Constitution of the United States, and the concept that the government needs to seek a warrant prior to beginning to conduct surveillance on an American citizen. This is a sacred duty that the American government has to its citizens, something that is enshrined in the Fourth Amendment which bars the government from engaging in illegal searches and seizures in pursuit of a criminal investigation (Dunn, 2015). A believer in utilitarianism would argue that the lives of American citizens are more important than adhering to a legal principle which demands a specific process be followed. Saving lives is seen as the ethical choice, superior to following the Constitution.
Applying Kantian Ethics Traditionally, the ethical theory that is the diametric opposite of utilitarianism is Kantian ethics. Developed by Emmanuel Kant, this ethical theory holds that ethical rightness or wrongness is not determined by the outcome of actions, but by the ability of the decision maker to adhere to their duty (Shaw, 2016). The foundation of this theory is that it is virtually impossible to control the ultimate outcome of events, and a person should always be in control of whether or not they are making ethical choices. In this way, the theory holds that a person can always adhere to their duty, as long as they are aware of their duty and have the moral fiber to follow that duty no matter what. In this way, the means are what determines the ethical nature of a choice, rather than the ends. Just as the proponents of the Terrorist Surveillance Program use utilitarianism as their ethical theory to support moving forward with the mass surveillance tactics, critics of the program ground their ethical disapproval in Kantian ethics. In the perspective of critics of the program, the government’s main duty is to uphold the Constitution of the United States. As the supreme law of the land, the Constitution is the guiding document which the entire American legal and political systems are based on. Many top government officials, including the President of the United States (who signed off on the NSA’s surveillance programs), swear an oath to uphold the Constitution (Dunn, 2015). It is very clear that the primary duty that the federal government and its agents have is to upholding the Constitution, and the argument follows that failing to obtain a warrant prior to gathering surveillance on American citizens (as the NSA program does to an enormous degree) is a violation of that duty, and is therefore an unethical choice under Kantian ethics.
My Perspective My position is that the NSA surveillance program is flagrantly unethical as it completely tears up the Fourth Amendment to the Constitution, one of the federal government’s most sacred duties and obligations to its citizens. The semantic gymnastics aside, the NSA is quite clearly engaging in illegal searches against American citizens, since they have not obtained warrants prior to beginning the program. Perhaps as importantly, I object to the NSA spying program on a pragmatic basis. So far, there has been little evidence that the program has been successful in stopping any terrorist attacks, despite being in place for over a decade. The 9/11 attacks were not successful because the federal government did not have enough information; the 9/11 Commission noted that there was tremendous amounts of information about each of the terrorists, but the pieces were not put together by authorities (Dunn, 2015). The NSA surveillance program is a perfect example of the federal government using a legitimate crisis in order to expand its power through illegitimate means.
Conclusion
The NSA’s Terrorist Surveillance Program uses technology to suck up metadata, which is analyzed to find patterns with regard to terrorism. A perspective based in utilitarianism would hold that this is ethical, since it helps save lives. A perspective rooted in Kantian ethics argues that this is unethical, as it violates the American government’s duty to the Constitution. For my part, I do not believe that this program is either ethical or particularly useful, and I think it should be eliminated immediately.

References
Dunn, W. J. (2015). The Constitutional Infirmity of Warrantless NSA Surveillance: The Abuse of Presidential Power and the Injury to the Fourth Amendment. William & Mary Bill of Rights Journal, 15, 147-202.
Lawson, G. (2008). What Lurks Beneath: NSA Surveillance and Executive Power. BUL Rev., 88, 375.
Shaw, W. (2016). Business ethics: A textbook with cases. Cengage Learning.