Published May 8, 2023
BY EMMA BROWN
According to top-secret documents leaked by a junior Massachusetts airman, the United States government has been spying not only its adversaries, such as the Russian military, but also its allies, like Ukraine. This isn’t the first time that America has employed this sort of intelligence. In 2021, the U.S. government signed a contract with an Israeli firm, NSO Group, that gave the government access to a system that tracks cell phones without a user’s knowledge. Two years earlier, the FBI purchased a hacking software known as Pegasus, which can covertly infiltrate and mine cell phone data, again from NSO Group.
We hold the right to privacy in high esteem. It’s fundamental to the American identity. The vast majority of Americans don’t fear government surveillance, but that’s not the reality for our adversaries and allies. If we believe that people have an inherent right to privacy, does that make America’s invasive use of spyware unethical?
To begin to answer that question, a right to privacy must first be established and subsequently violated.
Judith Jarvis Thomson was a reductionist, which means that she was a critic of privacy. She asserted that privacy wasn’t a stand-alone right, but rather an ideal that was interwoven with other fundamental privileges, such as an entitlement to liberty. To Thomson, if the government was using spyware to track someone’s phone, it would be an infringement of their freedom, not their privacy, which is a far more serious offense.
English philosopher John Stuart Mill would take a qualified approach to Thomson’s theory, arguing from a libertarian perspective instead. According to Mill’s Harm Principle, adults should be able to do as they please, so long as no one else is harmed in the process. He believed that the more free a society was, the happier it would be. As such, if people were being surveilled by the government without their knowledge or consent, they would not be truly free, because, even if they were unaware of it, their lives were being interfered with.
But can spyware still violate a right to privacy in a place where the prerogative doesn’t seem to exist?
Imagine a circular building with prison cells lining the walls, each one containing an innocent child. Inside the center of the structure is a lighthouse-like tower where a watchman sits, peering into the cells. Except, the children can’t see the watchman, so they don’t know when they’re being surveilled.
This structure, known as the panopticon, was created by philosopher Jeremey Bentham, who suggested that through surveillance, people would act as they ought to, because they would not know when someone was watching. As a result of surveillance, the world would become a better place, and according to utilitarian calculus, it would be ethical.
But unlike those children, the subjects of government surveillance have no idea when they’re being watched. They go about their day, ignorant to the fact that their lives are being invaded by a foreign entity. While one can hope that American organizations aren’t using spyware on average citizens, no matter who is being surveilled, their consent is being violated, posing a clear ethical conundrum.
Yet throughout American history espionage has been a critical source of intelligence, a way to stay one step ahead of foreign adversaries. If spying ultimately benefits the U.S., one could argue that the intelligence gained justifies the violation of privacy.
Though spyware is never mentioned, Niccolò Machiavelli’s “The Prince” can help to illuminate this issue. In this book, the philosopher suggested that rulers must act with “virtù,” acting swiftly and bravely on behalf of their subjects.
To Machiavelli, the end result of immoral actions would almost always justify the means. For example, if a president believed that a terrorist group was planning an attack on their country, it would be within their rights to employ what would typically be immoral surveillance technology to spy on the group. A president who used spyware for the right reasons would be standing on solid ethical ground, even if the act itself wasn’t moral.
As a utilitarian, it’s easy to simplify this situation within the framework of a “greater good” scenario. It might benefit our government to use spyware to gain intelligence about foreign nations, but violating a human’s inherent right to privacy, no matter the reason, is a slippery slope.