Professor Spooner's Blog

I am not a procrastinator by nature; actually quite the opposite. But I have been putting off writing this blog entry for months. When Edward Snowden became perhaps our country’s most famous whistleblower of all time, I should have been all over the story. Despite some discussion in class and off-line with students, I have been stewing on what I should write about this complex situation. I just can’t decide what the case is really about.

Snowden’s story may be about the ethics of blowing the whistle, in which case I should be applauding Snowden, like this editorial. I spend a lot of time encouraging students to voice their values, blow the whistle on wrongdoing, and stand up for what they believe. If in fact this is Snowden was doing when he stole loads of confidential government files and ran off to Russia, then I am a terrible hypocrite if I don’t applaud his efforts. The subtle point here is deciding whether the information he made public about the NSA’s efforts to monitor American communications was a report of wrongdoing. In other words, if you are accepting of the NSA’s efforts, then Snowden wasn’t blowing the whistle, he was just running amok with our national security. I disagree strongly with anyone who puts our country in danger because of philosophical differences with his employer, so that would leave me to view Snowden as unethical.

You may be starting to see why I waited so long to write about Snowden and the NSA. I really cannot decide who wears the white hat in this situation. It is entirely possible that everyone involved has on a decidedly gray hat.

After lots of debate with my friends and family, and endless reading, I decided only one thing for sure: I am entirely unqualified to weigh in on the national security issues here. I have no idea whether NSA’s monitoring has protected us from terrorism, although I hope it has. I will leave that debate to more qualified people (feel free to weigh in on comments below).

I do understand the legal issues presented by the NSA’s monitoring, however. At this point, the courts are entirely split on whether the NSA monitoring is constitutional. First, Judge Leon of the U.S. District Court for the District of Columbia ruled that the NSA mass collection of phone records is probably a violation of the Fourth Amendment’s ban on unreasonable search and seizure. Judge Leon ruled that we have a reasonable expectation of privacy in our phone records, and that such an expansion collection of historical data is unreasonable. He distinguished a key Supreme Court precedent, Smith v. Maryland, which allowed the police to monitor the phone records of an individual without a warrant because he had no expectation of privacy once the phone number is shared with the phone company, by explaining that the scope of the NSA’s efforts is so much larger, and that a lot has changed in 34 years.

The anti-NSA folks didn’t get much time to celebrate Judge Leon’s decision (which has been stayed pending appeal), because only a few days later another judge, this one in the Southern District of New York, ruled the very opposite way. Judge Pauley dismissed a case brought by the ACLU against the NSA, ruling that the NSA’s collection of phone records  “represents the government’s counter-punch” to eliminate al-Qaeda’s terror network.  He ruled that the large scope of the government seizure of data was necessary to accomplish its goal of protecting us from the terrorists. In other words, going small wouldn’t work.

Both decisions were made by federal trial court judges; this means that both decisions will be reviewed by the respective Circuit Courts of Appeals (D.C. and 2d Circuits). Depending on how those courts rule, the Supremes may weigh in.

I am still just as split as the courts; it isn’t that the law is that complicated here, it is that I am really torn on the validity of the government justification.  I do a tremendous amount of myth-busting around the Bill of Rights. One of the common myths to bust is that we have absolute individual rights against government action. No! The government has lots of power to do all the things we grow up thinking they can’t do: unwarranted searches, censorship, taking our property away. The Bill of Rights provides us with individual rights, but if the government has sufficient justification, they can step on those rights. The 4th Amendment is an area where this is clear: the Supreme Court has interpreted the Constitution to allow for lots of unwarranted searches by the government, as long as the government has a proper justification. It isn’t that our rights against unreasonable searches go away, but they are balanced against the government need.

The events of September 11, 2001, brought that balance into the light more than ever. I don’t know Judge Pauley, and as far as I have read he has not expressed any of the views I raise below. But I clerked in that same court the year before the attacks, so I am well aware of the profound impact of the attacks on every person who works in that courthouse. (And so many others, of course.) The Southern District of New York has been home to many trials for terrorists; several of the judges on the Court have 24-hour security because they have presided over those trials. The courthouse was literally in the shadow of the Twin Towers. I am not implying that Judge Pauley failed to be objective, but I thought a little context on his expressed view of the government interest in national security might be helpful.

Apparently I am just as split as the courts are here; I want to applaud whistleblowing, but I am not sure that the government was entirely doing wrong through its monitoring program. Thoughts?