The NSA approach detailing core values is unusual, largely relying on an interview with an individual to detail an organization's core values. The interviewer is anonymous, presumably posing questions that typically would come from the public. Anyone familiar with procedures of US government offices knows that the interview was not spontaneous. Questions were carefully selected, the webpage and the interview drafted, then reviewed by dozens of employees besides Deputy Director John C. Inglis, the lead senior civilian NSA employee, and revised numerous times. So readers should bear this in mind in reading the quotations attributed to Inglis.
At any rate, the interview lists NSA's core values – law, honesty, integrity and transparency – in text and video. Inglis' responses on core values emphasize "law," and this may explain the tension between the NSA and privacy advocates, between NSA and congressional critics like Ron Wyden of Oregon, between the NSA and former contract employee Edward Snowden.
Strict adherence to the law is by no means a guarantee of morality. "Moral integrity and responsible citizenship, understood merely as “good heartedness”, are themselves susceptible to manipulation by propaganda," explains an abstract of an essay by R. Paul posted by the Critical Thinking Community. "The human mind, whatever its conscious good will, is subject to powerful, self-deceptive, unconscious egocentricity of mind. The full development of each characteristic - critical thought, moral integrity, and responsible citizenship - in its strong sense requires and develops the others, in a parallel strong sense. The three are developed together only in an atmosphere, which encourages the intellectual virtues: intellectual courage, intellectual empathy, intellectual good faith or integrity, intellectual perseverance, intellectual fair-mindedness, and faith in reason. The intellectual virtues themselves are interdependent."
The Inglis interview includes several references to law and adherence:
“The word compliance has many meanings, but at the National Security Agency, we try to effect that the following way: we first hire people who understand that lawfulness is a fundamental attribute. We ensure that the people that we bring enjoy the values that we hold near and dear. We then understand what the rules are that pertain to our business, and we try to master the spirit and the mechanics of those rules, in all of the procedures that we bring to bear.”
“Respect for the law at NSA means that we understand both the spirit and mechanics of the law, and that we fully embody in our actions a respect for both.”
“….from the moment we design our systems, to employing those systems, to sorting through, sifting through what we might get from those systems, ensure that at every step of the process we worry not simply about what we've obtained, but whether we had the authority to obtain it and whether we've treated it in exactly the right way.”
“The oversight that's in place to make sure that the Agency does not cross the line, that it is entirely lawful in the conduct of its activities, is multifaceted and overlapping. First we ensure that we hire employees that have a respect for the law. We don't hire just anyone; we're not simply after people who have technical competence; we want to make sure we hire people who enjoy our values, who will support fully the Constitution.”
To his credit, Inglis touts respect for "both spirit and mechanics of the law." But can NSA activities meet the letter of the law if most citizens, and even most legislators, are kept ignorant of what the law entails? If most employees, let alone contract workers, do not understand the exact nature of their duties before entering these positions and there is no clear, non-punitive path for discussing the most troubling aspects? Can the activities satisfy the law if attorneys and administrators search for loopholes, twisting policy interpretations in ways that weaken or circumvent original intentions?
As we know, many laws – especially those that once mandated discrimination and criminalized the people who battled that discrimination, and this history is relevant to NSA policies and profiling methods – do not stand the test of time. In the span of less than fifty years, Martin Luther King went from being a target of FBI investigations to having the honor of a national holiday. The government has not learned that ignorance and stubborn pushback will only spur more activism, investigative reporting and debate.
NSA officials should take note and move carefully and deliberately with their investigations, avoiding sweeping collections. In a democracy, the targets can emerge as heroes.
Information is essential for democracy. "Poor public access to information feeds corruption," suggests Laura Neuman in "Access to Information: Key to Democracy," for the Carter Center: "Secrecy allows back-room deals to determine public spending in the interests of the few rather than the many. Lack of information impedes citizens’ ability to assess the decisions of their leaders, and even to make informed choices about the individuals they elect to serve as their representatives." Of course, security is an area where access to information is limited, but citizens have the right to set the parameters to the actions undertaken in their name and expect those parameters to be respected and enforced.
The essay goes on to suggest that "blanket exemptions – that is to say, an exemption that covers, automatically, a category or type of information – are unwelcome, often unnecessary, and risks serious abuse."
Abuse is inevitable in surveillance systems, especially when "low-level NSA workers can initiate the collection of any U.S. citizen's electronic communications on a whim." Just as one man accessed documents inappropriately and released them to the world, another employee could just as easily have used surveillance equipment to target a personal enemy or listen to conversations about secret business deals and then make investments based on the inside information. We simply do not know. But imaginations are running wild among novelists and screenwriters.
Strict adherence to law does not necessarily coincide with morality. Morality is not blind adherence to some dogma, but rather the lifelong acquisition of a conscience, the ability to sense right from wrong and understand the nuances of intention. Often the most skilled investigators are those who decline to simply accept orders and have the ability to analyze laws, policies, cases and context. Independent judgment is required in every task of high-level security employees, as they collect data, decide which connections warrant further scrutiny, examine intentions and context, and follow up.
Both law and morality channel individual behavior, explains Steven Shavell in his 2002 essay “Law Versus Morality as Regulators as Conduct” in American Law and Economic Review. In several sections, he addresses how information influences the application of moral versus legal rules:
“In the application of legal rules, certain information is needed. But information can be difficult to acquire or verify, such as that concerning whether a person committed a crime and, if so, what exactly the circumstances were. The difficulty associated with substantiation of information has two disadvantageous implications. One is that errors may be made…. The other is that legal rules are sometimes designed ina less refined manner than would be desirable if more information were available…. In summary, it seems that the informational burdens associated with the application of legal rules may constitute a significant disadvantage, leading to error and to use of simpler-than-otherwise-desirable rules. Application of moral rules with internal moral sanctions does not suffer from these problems, as individuals cannot hide from what they know about themselves.”
“Law may enjoy advantages over morality due to the ease with which legal rules can be established, the flexible character of law, and the plausibly greater magnitude of legal sanctions over moral sanctions. Also,the presence of amoral individuals can be a factor of significance favoring law, as can be the presence of firms, for whom moral forces are likely to be relatively weak. However, morality may possess advantages over law,because moral sanctions are often applied with higher likelihood than legal ones (notably, internal moral sanctions apply with certainty), may reflect superior and more accurate information about conduct, and may involve lower costs of enforcement and of imposition.”
Shavell also points out that, internally or externally, "moral incentives may be diluted" within firms and organizations:
"Internal moral incentives may be less effective in the setting of the firm because decisions within firms are often made jointly by groups, or influenced by orders from above, or acted upon and influenced by subsequent decisions made below. This may serve to attenuate the sense of personal responsibility for one's acts and may reduce the sharpness of moral incentives." An organization's employees can follow orders and trust assurances from superiors that the law is being followed.
"external moral incentives have unclear force in relation to employees of firm. [Again,] responsibility within a firm is often diffused, so that there often will not be specific individuals within firms whom outsiders to firms will want to punish for wrongful behavior. Also, a firm may have an incentive to conceal the identity of responsible individuals within just so they can escape external social sanctions."
We know little about the chain of authority for Snowden, his employer Booz Allen Hamilton or the NSA. Arrangements with contractors only muddy procedures and dilute responsibility. So far, no one in power has offered a detailed, appropriate path that someone like Snowden could have taken when troubled by agency processes. He could have approached Senator Ron Wyden's office, but the most likely scenario is that Snowden would have been ignored. The public release of the surveillance programs have instigated review and revived debate over the value of contractors for public service and morality of the Patriot Act and NSA surveillance.
Someday we might learn if Snowden even tried to approach a supervisor or government official. Of course, contracting firms are notoriously keen on ignoring individual concerns and preserving the flow of federal dollars that come their way. And while some government administrators are superb in accepting criticism, too many others are selfish, ambitious, fearful bureaucrats who take any question or criticism as a direct attack on their own judgment. Employees who dare suggest improvements or raise questions quickly learn to expect an ugly backlash.
So many whistleblowing cases might be avoided if the US Government Accountability Office conducted serious study of employee morale in federal offices, applying special scrutiny to offices and programs with high turnover rates. Emerging moral dilemmas would be identified more quickly with regular employee evaluations of office procedures and supervisors, preventing retaliation from supervisors. The US Office of Personnel Management should end immediately the irresponsible, unethical practice of supervisors conducting exit interviews for employees.
Later in NSA core-values interview, Inglis is asked, “What are the rules for retaining data on a US person?” He focuses on “what are the rules that allow me to get that data in the first place?” He goes on to compare explicit authority with implied authority, the need for individual judgment, and the obligation to purge data that did not meet the rules around authorization:
“Those rules are very carefully constructed; we have to have explicit authority, not implied authority, but explicit authority to go after anything in cyberspace, and therefore, if I was to target communications, I need to make sure that I can trace that authority back to an explicit law or court warrant. At that point, I have to make a decision as to whether this in fact was responsive to the explicit authority that I had; I may collect information that's incidental to that. It may have seemed to me up front that I would get information responsive to my authority, but I didn't. I have an obligation to purge that data, I have an obligation to not retain that data. So that at the end of the day, those things that I've gone after I simply didn't have the authority for, but it's the authority plus… it played out just the way I had imagined, I got exactly what I was authorized to get, and I retain only that data.”
It appears the agency retains non-content data for much longer periods than indicated in this interview, and that should end, at least according to the American Civil Liberties Union, which describes data being "dumped into something called the 'corporate store,'" for later access. In the least, Congress must ensure a firm end date on data storage. No one should be judged or investigated based on comments they made years or even months earlier if no illegal activity ensued. Citizens have a constitutional right to free speech (first amendment), and they also have a right to change their mind (fourth amendment).
Among the more troubling aspects of the NSA debacle is a prevailing US attitude on human rights – with suggestions by even the president that expectations for privacy are reserved for US citizens. Inglis is more specific on this point than the president: “The intelligence that we are authorized to collect, and that we report on, is intelligence that bears on foreign adversaries, foreign threats, more often than not, located therefore in foreign domains.”
Human rights are universal, and the US legislators and courts will debate and decide if privacy of ordinary phone calls and emails is such a right.
The United States stood as a beacon to the world, regarded as exceptional by global citizens, not because of its military capability or the ability to keep secrets, but because of economic opportunity, innovation, respect for openness, individualism and freedom. US citizens or foreign visitors suddenly feel the need to engage in self-censorship. Until political leaders can assure global citizens that the NSA has ended the intrusive data collection and storage efforts, internet users should click with caution.
The Inglis interview was posted on the NSA website in 2009 and last modified in January 2013, before Edward Snowden exposed NSA programs. Photo of empty computer lab, courtesy of Shirley Ku and Wikimedia Commons.