Edward Snowden, variously reported as working for he CIA, the NSA, or an NSA contractor, has stirred up the media over whether the US government is violating the US Constitution by collecting information on US citizens. Apparently, he thinks of himself as this generation’s Daniel Ellsberg. Time will tell.
What the media don’t tell is typical: a detail that might enable their audiences to decide for themselves whether Snowden is a whistleblower or a criminal. The detail in question has to do with how the government interprets the Constitution, the “rules of the road” that are briefed annually to everyone in the US Intelligence Community. These rules are spelled out in presidential Executive Order 12333 as amended in 2008.
Specifically, EO12333 enumerates what information can and cannot be collected on US persons (US citizens, legal residents, and US corporations), under what circumstances, and for how long it may be retained. If Snowden’s disclosure shows a violation of this order, then he might be a whistleblower. If not, then he has needlessly degraded the security and safety of US persons in an act of criminal and traitorous stupidity.
I say he might be a whistleblower, because there were alternate and legal pathways for him to voice his concerns: his immediate supervisor, the CIA Office of the Inspector General, or the staff of any member of the House Permanent Select Committee on Intelligence or the Senate Select Committee on Intelligence. Even going to the US Department of Justice OIG would have been better than first going to the media.
He has already agreed in writing that US government may seek both civil and criminal penalties against him by signing the non-disclosure agreement required to get his clearance. Maybe he regarded that document as so much boilerplate, and treated it like the End-User License Agreements that we all click on without reading. If so, it was the second worst mistake of his life so far. The worst, of course, is violating that agreement.
The bottom line, however, is that yes, your government may be watching you. So are other governments. So is big business. And big business probably does it better.
In his recent article, The Individual as Property, Timothy Birdnow doesn’t quite go far enough. He agrees with John Locke that every individual has a right of property in his own person. Indeed, Amendment IV of the US Constitution States:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Your person is grouped together with your house, papers, and effects as things being your own. Yet governments and corporations collect your personally identifiable information (PII) all the time. Your PII is bought, sold, and traded. The only participant currently excluded from the market in your PII is you.
I think that your PII is an extension of yourself – your presence in cyberspace – and that you have the same right of property in it as you have to your presence in physical space – your person, house, papers and effects. I would like to have a Constitutional Amendment that recognizes that your personally identifiable information is an inalienable part of you, and that who ever comes into possession of it comes into a fiduciary relationship with you. That is, the possessor of your PII must make no use of that information without your consent, and may only use it to your benefit.
Governments and corporations will claim that they can’t do business unless they own our information. But in the 1800’s many agricultural interests claimed they needed to own the people who worked their land. Americans fought a Civil War to convince them to rent the people’s time instead. America ended slavery in favor of wages, salary, or compensation – a day’s pay for a day’s work.
Now technology has extended your person into cyberspace. It is time for the law to catch up, and for government and business to develop ways to respect our right to our information – ourselves.