Social Contract Theory

free essayAmerica has a legacy of notorious whistleblowers. Daniel Ellsberg, Bradley Manning, and Edward Snowden responded to the horrors of the wars started in Vietnam, Afghanistan, and Iraq and disclosed top secret documents that negatively portrayed the US government both domestically and internationally. Whereas these individuals exercised their rights according to the First Amendment under the Bill of Rights, the government accuses them of treason, conspiracy, and espionage.

A Social Contract among “Netizens”

Even though generally the Internet seems like a chaos, it is a highly structured system organized by the engineers and scientists as commercial Internet Service Providers (ISPs) in the late 1980s. Inasmuch as it can be used as a means of communication and information distribution, the Internet is very important for the political sphere because it can challenge the existing order of things. Therefore, the Internet is a double-edge sword: while it has a deeply anarchic character and an anti-government nature, it can be very helpful for the governments to have it at their disposal. At this point of development, the Internet is clearly included into the economic and political processes, and it seems very natural that entities and individuals participating in various processes conducted by using the Internet should be governed by something like a social contract to prevent any legal action in case of any disputes. When Rousseau and other thinkers refer to a social contract they usually remind that it is a better form of the existence for human society than its natural state before civilization developed (Ala’i and Vaughn). Even though the borderless world of the Internet transcends the boundaries and authorities of the nation-states, it has its grounding in the material things such as servers, providers, cables, and other technical elements. Therefore, there can be means to enforce the law of physical spaces, such as nation-states, onto the virtual online entities and individuals. However, the nature of the Internet allows the users to transcend the borders and local laws. Thus, the users in China, Northern Korea, and Iraq can bypass the ban on some websites. At the World Economic Forum in Davos, Switzerland, John Perry Barlow drew up “A Declaration of the Independence of Cyberspace” saying “We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.” As long as a small amount of people is involved, it is possible to rely on common sense and expect people to use their better judgment and the notions of honesty and justice. However, there are issues that individuals are not able to solve on their own or their actions are so far reaching that they require the engagement of some authority. The different worlds of cyberspace and real space should converge when the problems are related to a large number of people or a serious offence from the point of view of the government. To this effect, the laws and rules of the country where an individual or an entity goes online should apply.

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The Pros and Cons of Transparency

One of the advantages of cyberspace without boundaries is it transparency that allows any netizen, who has access to sensitive information, to reveal the secret wrongdoing by private and public sector elements. Transparency became associated with democratic practices, lawfulness, human rights, and anti-corruption. Greater transparency helps decentralize power by giving information to a wider circle of people. However, transparency has a reverse side and it can be damaging for many people. Among the disadvantages of transparency is the decline of trust to the public institutions and private sector. Ironically, transparency is debated primarily in the Western countries, whereas the states with no democracy seem to need transparency more. In fact, the Western democracies are secretive as much as other states, and the Western institutions and corporations oppose complete transparency as too harmful one (Ala’i and Vaughn 1).

It would be incorrect to automatically equate transparency with democratic initiatives and positive outcomes because it is crucial how information is interpreted and acted upon. Thus, transparency is “a complex phenomenon, the effects of which can be either positive or negative depending on what transparency reveals, how people interpret the information they receive, and how people respond to that information” (Lord 20). Indeed, greater transparency can contribute to the changes in politics, legislation, and other spheres of public interest by wielding sensitive information and empowering those who have it. For example, non-governmental organizations can use sensitive information as the leverage against governmental organizations or political figures to demand some changes. Civilians receive means to monitor political figures and political organizations and prevent their abuse of power and corruption. However, it does not automatically mean that the results of the decentralization of power will be used for the benefit of democracy.

While transparency does weaken the state control, it cannot be said that it always results in a positive outcome. Whereas sovereign states seem a defeated party in this case, with citizens and small organizations getting upper hand, it is not necessarily a case. In fact, “[g]reater transparency often strengthens the strong as well as the weak and even may give the strong new sources of power” (Lord 96). When a state, especially an authoritarian one, is able to prove the lack of corruption through transparency its power over citizens increases. It gives citizens an illusion that their state has proved that it is legitimate and lawful (Lord 96). In the book The Perils and Promise of Global Transparency, Kristin M. Lord discusses the case study of Singapore as an example of an open but illiberal state. Through “a blend of significant individual freedoms; open but controlled dissent; partial press freedom; and strong disincentives for opposition parties, civil society, and more aggressive media” (Lord 112), Singapore is able to remain a semi-authoritarian state where transparency does not contribute to democracy. Furthermore, as an unlimited access to the Internet is one of the characteristics of an open state, Singapore grants easy access to the Internet but controls the flow of information. The government requires citizens to register for browsing, controls online news media in the same way as the print media, and holds providers accountable for the information kept on their servers (Lord 104).

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Thus, transparency may bear the necessary fruit in democratic systems by holding governments more accountable, monitoring corporations and governmental organizations’ performance, and giving citizens more power. However, transparency can have a reverse effect when sensitive information is interpreted and implemented in a way detrimental to the democratic practices.

WikiLeaks and Other Whistleblowers

The subject of sensitive information brings up the issue of whistleblowing. In time of the Internet, it has become easier to leak sensitive information because sources of confident information are easier to hide and the information is easier to disseminate. It used to be more difficult to find a publisher who could protect the whistleblower. Moreover, publishers could be easily ordered to keep quiet and the dissemination of the information would stop. However, that ease turns out to be a disadvantage as well. Whereas offline leaks used to be checked carefully and they had some names removed, online leaks often dump the whole lot of the leaked information online up for the public to decide what to do with it. Obviously, without precautions, the leaked information can produce collateral damage to the people and entities indirectly involved (Lozano et al.).

Therefore, the subject of whistleblowing is complex and it contains both the arguments for and against such a phenomenon. Overall, whistleblowing is considered a good and necessary element of democratic society because it exposes the wrongdoings of people and organizations in power. To some extent, the mass media are gigantic whistleblowers as they perform their direct obligations and let the public know about schemes and shenanigans of the government and corporations. However, not all people agree that revealing confident information could be named a noble cause of whistleblowing. Some insist on calling it spying (Henriquez). Another argument, which is highly debatable, is what society needs more – privacy or transparency. Governments insist that information allows them to protect citizens, and therefore, it is in the citizens’ interests to agree to the so-called social contract and give away a part of their rights, including the right for privacy, to have more protection. Meanwhile, another viewpoint holds it that in the time of increased surveillance and information gathering, people could not and should not give away their privacy (Henriquez).

Whistleblowing as a phenomenon is widely known and it covers the cases when an employee exposes unlawful actions of their employer for the general good of society. In 1971, a military analyst Daniel Ellsberg contacted The New York Times regarding the publication of the so-called Pentagon Papers that exposed the US actions in Vietnam and revealed an unlawful government policy (Lessig 238). The Pentagon Papers made a negative evaluation of the Vietnam War and reported that the US government knew from the very onset of the war that the USA could not win the war. Ellsberg was engaged in the evaluation of the Vietnam War and he had access to the confidential documents. Being initially a supporter of the war, Ellsberg was so shocked by this information that he decided to make it public. Together with his colleague Anthony Russo, Ellsberg spent several weeks making photocopies of the documents away from the office. Knowing that his actions were illegal, Ellsberg acted out on his understanding that the USA had acted in the war even more illegally. Ellsberg tried to have the Pentagon Papers read before Congress and gave them to some senators and scholars. Eventually, Ellsberg convinced The New York Times reporter Neil Sheehan to begin the preparation of the materials for publishing. It took ten weeks to read and verify the materials. The publication was made in ten installments. After the first publication, Attorney General John Mitchell required The New York Times to stop the publication and return all the materials. When The New York Times failed to comply, the government filed a suit against the newspaper. The Court issued a gag order to The New York Times, so Ellsberg quickly passed the papers to other newspapers. Once some confidential information has been leaked, the Court’s gag order loses its validity. Eventually, the Court granted The New York Times the right to print the Pentagon Papers complete expos?. As the result of the publication, the US government experienced huge embarrassment. Internationally, the government believed that the state’s reputation had been harmed and it would be considered weak. Domestically, the president’s reputation had suffered as well. Even though the Pentagon Papers referred to the time period of the presidency of Kennedy and Johnson, Nixon’s administration was also harmed because people interpreted the event as either the president’s weakness and inability to influence the event or the president’s inclination to wrongdoing as much as any other politician (Lessig 239).

One of the most notorious whistleblowers in the recent decade is WikiLeaks established in 2006 as a non-governmental and non-profit organization. As is evident from its name, WikiLeaks’ major activity is leaking confidential information hacked from the governmental sources. Founded by the activists from China, Taiwan, Australia, South Africa, Europe, and the United States, WikiLeaks advocates transparency and openness. WikiLeaks’ media face is Julian Assange who has been both lauded for his achievements in the field of free speech and transparency and prosecuted for espionage. Even though the materials provided by WikiLeaks were then used by high-profile media such as The Guardian, Le Monde, Der Spiegel, El Pa?s, and The New York Times, the organization’s website has been under both cyber and legal attacks, and with the help of private individuals, it became mirrored all over the world to ensure its accessibility (Lozano et al.).

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The most high profile leak was Afghanistan and Iraq war documents revealed by Wikileaks in the uncensored form in 2010. They were uploaded on WikiLeaks’ website by Private Bradley Manning. Even though WikiLeaks protects the identity of its leakers and it is not even aware of their identities because the uploads are made anonymously, Manning was turned in by American hacker Adrian Lamo who believed that Manning’s leaked materials had endangered the lives of the soldiers currently in the world’s hot spots (Gibeny).

Another recent political scandal was the security breach performed by the US ex-government employee Edward Snowden in 2013. Snowden leaked the federal documents on the NSA’s domestic and international surveillance. Snowden’s disclosure created a huge wave of public response, as the US citizens were shocked to find out the extent, to which the US government had conducted unwarranted surveillance, spying on telephone and Internet communications of its own citizens. It raised an issue of “constitutionality of the NSA’s domestic surveillance” (Wells). Additionally, the relationship between the USA and its allies was affected because of the NSA’s international surveillance and bugging ambassadors’ communicating lines and spying on the political higher-ups of other countries. Whereas some part of US society was scandalized by treason and the confidentiality violation, which compromised the USA’s standing on the international arena, some part supported Snowden in his sentiment to uncover the US government’s wrongdoing (Wells).

All these leakings and whistleblowing caused great stress and embarrassment to the government who had been reminded of its accountability. Therefore, the government and the involved governmental organizations had to respond somehow to save their face and calm down the agitated public. One of the classic tactics for the conflict management is the smear campaign. Apart from dealing in the field of legislation and holding whistleblowers liable for some legal matters, the authorities pick on the personalities of the leakers. It is a classic method of trying to harm one’s credibility by pointing at their personal peculiarities and lifestyle. In relation to Daniel Ellsberg, the Nixon Administration uncovered his psychoanalyst’s logs about Ellsberg’s psychosexual attitudes (“On “Smear Campaign” against Snowden”). Manning’s identity disorder took a central stage and drew away people’s attention from the government’s tragic wrongdoings. Assange had been involved in a sexual scandal and he was portrayed by many mass media as a cultish personality akin “the Australian L. Ron Hubbard” (Maass). Additionally, Ellsberg and Snowden were accused in being Russian spies. Snowden was named a Chinese spy as well. Therefore, the whistleblowers’ credibility is undermined in many other ways “to distract from acts of conscience by focusing on sexuality, character, psychology and alleged ‘issues,’ rather than conscience, motive and morality” (Maass). Apart from diverting the public’s attention from the serious matters at hand, smear campaigns are intended to tarnish the target’s reputation and good name, after which a large number of people would refuse to believe him or her and take him or her seriously.

The Role of News Agencies

In all whistleblowing and leaking scandals, leakers and whistleblowers are usually more punishable than the officials behind the government’s wrongdoings. However, their task would not be possible without the mass media. Here, news agencies deal with conflicting tasks. They want to get the scoop and publish hot and controversial materials and, at the same time, they need to avoid being held liable for their actions. Simultaneously, they are morally bound to protect the identities of their informants. Inasmuch as sources are the reason why the media receive top-secret information, they should carefully protect their informants. However, in the context of a grand jury trial, the journalists are obliged to reveal their sources and the First Amendment of the Constitution does not exempt them from it. At that, several states have passed laws that protect journalists’ confidentiality. Additionally, some states give “press-shield”- “statutes granting journalists a privilege to protect the confidentiality of their sources” (Briefing Paper 15).

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However, as Showden’s leaked documents have revealed, the government has a practice to circumvent the Court’s decisions on the protection of personal data and get hold of any sensitive data they need. For example, “Emails by Fox News reporter James Rosen were searched without his consent by the Justice Department to reveal the source of a leak” (Chavkin). Therefore, the recent leaks and the prosecution, both legal and in the press, of the whistleblowers reveal that the new legislation should take into consideration how to protect those who contribute to transparency and accountability of the government. In 2013, new initiatives were started “to restore the practice of encrypted anonymous leaks” (Chavkin). Several websites offer platforms for the anonymous data sharing. In 2013, Freedom of the Press Foundation launched SecureDrop, a leak submission program that allows the US press organizations use it and protect their sources.

Nevertheless, informants are the least protected group involved in the whole business of leaking secret information and whistleblowing. For example, The Wall Street Journal and Al Jazeera have “organizational policies [that] allowed them to give up leakers’ identities to law enforcement” (Chavkin). Along with The New Yorker, The Wall Street Journal and Al Jazeera also attempted to launch similar protected whistleblowing platforms. In any case, the initiative of anonymous leaks websites is a very good idea because it greatly reduces the risk of identity revealing. Journalists and their sources do not have to meet face to face, and the government and law enforcement agencies have fewer reasons to coerce the press organizations into cooperation. For the obvious reasons of self-preservations, the journalists trump ethical issues and the moral decision-making. Being a journalist and a hacker, Adrian Lamo promised Manning confidentiality. Saying that he would keep his identity, he would go and report on Manning to the FBI, probably securing a deal with the authorities (Gibney).

However, after several years and these new initiatives, subsequent whistleblowers will probably have better protection. For example, in April, the largest leak in human history was revealed. This time, it was on “a widespread system of global tax evasion” (Greenberg). So far, the identity of the leaker retains undisclosed.

The Problem of Treason

However, the whistleblowers’ personal ‘issues’ are not able to invalidate the information revealed because it is too important and influential. It was easier to smear an individual in the 1960s and the 1970s just by running a smearing article in the largest national newspaper. Now, with thousands of blogs and wide accessibility of the Internet, even The Washington Post and The New York Times are not able to reduce the importance of the top secret information provided by the whistleblowers by simply informing the public of Manning’s gender change or Snowden’s psychological issues. Therefore, through mass media, the authorities choose the way of stirring a public debate and aggressively convey the idea that the whistleblowers are spies, conspirators, and traitor (Lessig 239).

For example, Snowden was charged on the Espionage Act. Snowden’s actions could not be classified as treason as he had not assisted the enemy and had not levied a war against the USA. However, his charges, according to sections 793(d) and 798(a) (3) of the Espionage Act for “intentionally revealing secret national security information” (Wells) could be interpreted very broadly. The perpetration of “intentional communication” of classified information of various degrees of secrecy to “an unauthorized person” can refer to almost all ordinary people and anyone can be charged (Wells). Furthermore, the charge depends on whether “one has reason to believe the information could hurt the US or help a foreign nation” (Wells) or not and thus the law places the decision making process into the hands of officials who are to decide who can be charged under the Espionage Act. Thus, any case can be pursued, while another case will be chosen to be dropped and it can lead to “one-sided punishments” (Wells). Therefore, this debate returns back to the First Amendment and the freedom of speech.

The problem of treason is always a vexing issue when the national security is involved. Those who work or serve in the civilian and military sectors of the government take oaths of loyalty and/or sign confidentiality contracts. By taking such loyalty oaths as the US military oath, people usually swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and “obey the orders of the President of the United States and the orders of the officers appointed over” an individual (“Oaths of Enlistment and Oaths of Office”). The defending of the Constitution and serving the President and other higher commanding officers create conflicting obligations because the Constitution is ‘set in stone’ so to say while the higher-ups are people who can make mistakes. As it is evident from the Snowden example, as much as any other whistleblower discussed here, his actions were aligned with the Constitution and the First Amendment. Whereas Ellsberg, Manning, and Snowden were aware that according to the current laws and the Army’s statute their actions were illegal, they chose to proceed for the sake of truth and transparency.

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While the military oath is binding, there are circumstances when a soldier can forsake the oath for moral reasons. As a nation where adherence to the truth and honesty are in high esteem, Americans know that in time of need, conscience trumps loyalty. The realization that the war is unjust can be considered a valid reason to break the oath. Being taught that they should cultivate the most noble virtues, professional soldiers are aware that “courage, loyalty, and obedience do not ‘trump’ integrity” “that is to say that [these virtues] are promoted primarily because they are important for the effective functioning of military organizations, rather than because they are valuable in themselves” (qtd in Knapp). Therefore, depending on the situation, soldiers can follow their “higher moral duty” rather than an order of higher command. However, there are a rather limited number of professional soldiers to make such morally difficult decisions probably because they do not want to compromise their service and job perspectives (Knapp). However, in the time of war, it can creates a paradox of how to maintain discipline and follow orders in the army and prevent war crimes. In his paper “Defense of Superior Orders before Military Commissionism”, James B. Insco writes: “The United States should recognize the fundamental tenets of criminal law and allow the defense of obedience to orders as a legitimate means of demonstrating a defendant’s lack of mental culpability” (417). Therefore, even under the oath, soldiers should use their better judgment and should not absolve themselves from all personal moral responsibility.

The Espionage Act

The Constitution intendedly defines ‘treason’ very narrowly, “so that individuals were relatively safe from the abuses of an earlier age” (“Historical Concept of Treason” 75). According to the US Constitution article III, section 3, treason is defined as “only in levying war against them, or in adhering to their enemies, giving them aid and comfort” (Schultz 440). Additionally, it requires two witnesses to confirm the act of treason (Schultz 440). Other legal documents were used for the acts of treason and disloyalty. There is no definition of ‘disloyalty’ in the Constitution and it is perceived more as a synonym for treason (“Primary Documents”).

The Espionage Act of 1917 is used to convict the American civilians and service people for revealing confidential information. The Espionage Act was adopted to deal with the US military corpus regarding the contacts with the enemy during wartime, subordination in the army, and other military-related cases. However, it was adopted at the time of the Communism threat so the government needed a tool to scare people off from making the contacts with communists and Bolsheviks. Therefore, the wording of the Act is vague and not as precise as it should be. There was an attempt to amend the Act, and in 1918 the Sedition Act was added and then dropped in 1921. As of today, the Espionage Act of 1917 has been amended several times to broaden its scope (PEN American Center).

For the cases of whistleblowers, the Espionage Act of 1917 was applied. There has been criticism that the Espionage Act is too broad and anyone charged with espionage can be convicted according to the broad interpretation of the Act. Therefore, it is very difficult to defend a whistleblower under the Espionage Act as it can be called “too blunt an instrument,” “aggressive, broad and suppressive,” a “tool of intimidation,” chilling of free speech, and a “poor vehicle for prosecuting leakers and whistleblowers” (qtd in PEN American Center). Ellsberg says that under the current law, whistleblowers are not able to get “a truly fair trial (qtd in PEN American Center). According to the Espionage Act, perpetrators charged with “treasonable” or “disloyal” acts can be punished by a fine or by imprisonment. Depending on the charge, the imprisonment can be from two to thirty years.

New Ways of Getting away from the Government

Besides the problem of whistleblowers and top secret federal materials being leaked, Washington is also disturbed by the issues of the Deep Web. The Deep Web is a net of websites not accessible by regular browsers and not searchable with traditional search engines like Google or Yahoo. One of the most famous Deep Web networks is called Tor and one of the most notorious websites on the Deep Web is the Silk Road known for its dealings in drugs and other illegal goods and services. Essentially, it is an online black market with drugs, stolen goods, uncertified software, weapons, and porn. However, the Deep Web allegedly does not deal with child pornography and contract killing. In 2013, the FBI busted the Silk Road and its wealth in crypto currency (Newton-Small).

After all the scandals brought up by Snowden and other whistleblowers, the USA is repeatedly named ‘the surveillance state’ so people find new ways for themselves to circumvent the government’s control both online and in their financial operations. The Deep Web is largely operated with crypto currencies and Bitcoin is one of many crypto currencies brought to the US government’s attention. Bitcoin operations are anonymous, and such a lack of traceability frightens the government. When there is no trace of a transaction, there is no tax from it. Therefore, the government’s concern is that Bitcoin can be used for money laundering. Now, it is a task to decide how to treat crypto currencies, whether they are bonds, or services, or commodities.

The problem is that the concept of Bitcoin and the Deep Web are so startling and new that the government still grapples to understand what it is. Only with full understanding it can be decided what to do with them. The untraceability of crypto currency returns society to the times of barter and cash money. Similarly, the Deep Web also shows limitations of legal systems to have control over people. The government attempts to understand these new developments by commissioning reports and investigations, but often, they also do not reflect the facts of the matter. The government holds against Bitcoin and the Deep Web the fact that they are used for criminal dealings such as child porn, contract killings, and drug dealing. However, the claims are often exaggerated. It is true that both Bitcoin and the Deep Web are used for various illegal activities as much as it happens with national currency, but the scale of these crimes is not truthfully reported. For example, it was reported that 80 percent of Tor hidden services were child porn but recently, it was revealed that “only 2 percent of Tor traffic was related to hidden services, meaning that 80 percent of that 2 percent was to do with child porn” (Cox). Therefore, so far the government’s activities related to the crypto currency and the Deep Web are biased and ineffective.

Conclusion

The Internet is a new and still uncharted territory, and society still learns how to use it productively and effectively. At the same time, seeing the government’s attempts to control everything, including personal data of civilians, it is logical to assume that people find new ways to circumvent the authorities and their attention though the Deep Web and crypto currencies. Society strives to hold its higher-ups accountable; hence, it supports the whistleblowers who are an inevitable part of democracy and transparency.