By: Karishma Firdausi

Unpacking Equity is a collaboration between the Public Policy and Governance Review and the Equity, Diversity and Public Policy Initiative (EDPP) at the Munk School of Global Affairs and Public Policy. This series aims to explain equity-related policy issues and break down complicated topics involving equity, diversity and inclusion. Policy professionals can gain a better understanding of these complex issues in order to incorporate an equity lens into their practice. To learn more, please get in touch with the EDPP.

Liberty, Freedom and the Pursuit of Mass-Surveillance: An Analysis of the 2013 Snowden Revelations

The shift from an industrial to ‘information society’ has unveiled the increasing reliance for government bodies to unpack the porous lines between laws and regulations that govern privacy policies. Privacy policies can be loosely defined as the information production chains that involve the government’s access, creation, storage and use of Personal Information collected through institutional encounters. Advances in privacy policies are not a zero-sum game, rather the ‘right to privacy’ is a substantial part of the larger policy landscape. Notably, the way problems are defined and who defines them will have lasting impact on future privacy policy outcomes.

Privacy policies were at the forefront of political debates following the September 11^th, 2001 (“9/11”) terrorist attacks on the U.S.. After 9/11, the ‘problem definition’ was expanded beyond ‘foreign’ threats to include domestic threats within the U.S.. The 9/11 attacks triggered policies around national state surveillance and legal protections. As such, the ‘right to privacy,’ was relaxed in the name of national security concerns. Compelled, American’s rallied behind their state and accepted the inevitable privacy trade-offs for the greater national interest. The ‘problem definition’ gave the National Security Agency (“NSA”) unprecedented power to push the boundaries of mass-surveillance. In 2009, the then government expanded the reach of the Foreign Intelligence Surveillance Act (“FISA”), which authorizes the NSA to surveil individuals that pose a domestic terrorist threat to the U.S. and/or on counts of espionage.

In 2013, a former NSA contractor, Edward Snowden, revealed thousands of documents to The Guardian, which exposed the NSA’s mass-surveillance of millions of telephone records and their database of stored Personal Information, justified under the FISA. Thereafter, the U.S. Department of Justice laid charges against Snowden under the Espionage Act. It has been seven years since Snowden released the damning information and its legal dispute has finally been settled in the Courts. Privacy watchdogs presented evidence that the FISA requires warrants for mass-surveillance operations and that these warrants were not obtained. The Court ruled against the NSA and found the ‘eavesdropping’ operation as unconstitutional. This Court ruling is pertinent to unpacking how the ‘problem definition’ rooted in the 9/11 era cannot reconcile current day privacy infringements for national security concerns.

Gatekeepers of Knowledge and the Implicated Population

Within democratic nations, citizens vote for political leaders to safeguard their democratic principles—including transparency, accountability, and oversight. However, national security concerns may override these democratic principles. It has been almost two decades since 9/11, yet mass-surveillance has continued to envelop daily, ubiquitous encounters. Privacy scholars note, that the realities of young men and women wondering whether their phone conversations are being ‘tapped’ is no longer a question. Rather, it is the (un)intended consequences of overzealous privacy policies.

Predicated on the secrecy of government actions and the course of expanded power, political actors and government agents have become the gatekeepers of knowledge. As described in the Globe and Mail (2020) article, NSA members publicly defended the mass-surveillance program and cited it was a necessary action to fight against domestic extremism. Yet, the Snowden revelations demonstrate that the NSA was wilfully denying the public of truth, while simultaneously infringing upon their civil liberties. The expansion of state power, especially in the realm of privacy policy, is both problematic and understated. Privacy advocates note, it ought to be assumed that citizens-at-large are not trained privacy professionals. Accordingly, watchdogs have put pressure on the Court’s to rule against state mass-surveillance that infringe upon civil liberties. As such, the need for a new ‘problem definition’ emerges, where the shift to reclaim privacy protections relies upon a well-educated and informed citizenry as key stakeholders within the policy making process.

Societal Values and Future Privacy Implications

The Snowden revelation unpacks the societal values that can be inferred from the Court ruling, particularly in favour of whistleblowers and watchdog groups. National media outlets have elevated Snowden’s tweet, where he felt vindicated in the Court ruling. Sensationalizing Snowden’s sentiments on the Court’s new legal precedent is an integral part of establishing a new ‘problem definition.’ Specifically, it sheds light on how the government ought to balance the treatment of whistleblowers in line with its enshrined democratic principles. The question becomes, do we punish those who speak against the unconstitutional actions of the government, or do we maintain a status quo framework which relies upon ‘problem definitions’ rooted in past conflicts?

The lessons to be learned from the Court ruling is clear—the cost of the mass-surveillance programming has outweighed its benefit for the public interest. This implication is important for the future considerations of what privacy policy will entail. Ultimately, the public-at-large should be understood as the key stakeholders in defining the new ‘problem definition’ for mass-surveillance programs in the U.S.

Karishma Firdausi is a Master of Public Policy Candidate (2021) at the University of Toronto’s Munk School of Global Affairs and Public Policy. Karishma is the Director of the Equity, Diversity and Public Policy Initiative at the Munk School and an elected Graduate Education Council Member at the University of Toronto’s School of Graduate Studies. Her policy interests surround access, freedom of information and privacy.