The Electronic Social Contract

By: Sonia Shaikh

The recent exposure of NSA’s surveillance policies has ignited a national uproar. Americans have angrily cited violations of the Fourth Amendment and privacy rights as reasons to shutdown all warrantless wiretapping. According to many, including federal Judge Leon of the District Court for D.C., the monitoring of instant messaging, phone calls, and emails are nearly “Orwellian” in approach and infringe upon constitutional propriety. However, isn’t our country’s entire governmental system based upon the social contract, thereby legally allowing the government to protect its citizens however it deems appropriate?

The social contract theory functions on the belief that individuals relinquish certain freedoms to the governing body in exchange for the protection of their liberty. In this theory, the legitimacy of the government relies upon the consent of those under its governance. Edward Snowden, one of the chief broadcasters of NSA policy, criticized this contract by explaining, “If we can’t understand the policies and the programs of our government, we cannot grant our consent.” Such a statement is useless without clearly defining consent, and how it applies to this specific scenario.

Consent is the concept that individuals predominantly act as free agents, entering into consensual relationships with other free agents, thereby establishing political governance. Consent may be enacted by three popularly accepted methods: express consent, majority consent, and tacit consent.

The strictest definition of consent, express consent, relies heavily on complete disclosure. A government may only have authority over those citizens agreeing to abandon their individual rights and be ruled. If this were the case, an entire government’s legitimacy could be determined by one citizen’s refusal to provide consent. Of course, such high expectations are unrealistic and rarely administered when determining the legitimacy of government action. Therefore, the doctrine of majority consent is the more practical option; allowing the government to retain authority so long as the majority agrees.

Assuming the majority had “consented”, Snowden and his supporters would argue there is still no basis for consent. Prior to 2013, the majority of the population wasn’t even aware of the NSA’s practices, and therefore could not consent. Since the NSA has not provided full disclosure, it is automatically illegitimate. This argument falls under the assumption that consent is only valid if expressed. Acts of consent, or “express consent,” are those acts that require explicit voluntariness and conscious actions of the individual. It may include promises, written contracts, and permission given for others to act.

It may also be argued that express consent encompasses conscious inactivity on the part of the individual. Rather than express opinion by way of vocal or physical means, consent is given through silence and inertia. We can use the example of an individual who joins a baseball team. Although the individual has not directly given his consent to be governed by the umpire’s decisions, since he joined the team and agreed to play the game, he has tacitly also agreed to be under the rule of the umpire for its duration. In this case, simply by living in the United States we have tacitly consented to the government and its decisions — no matter how they conflict with our individual rights and freedoms. Thus, the actions of the NSA should be perfectly valid as they are for our protection, right?

According to Snowden’s disciples and the philosophy of political obligation, the answer is no. The theory dictates that there must be specific requirements for an act of consent. The silence and inaction cannot stem from any of the following; inability to understand the situation or the inability to understand the procedure. The NSA’s surveillance strategies conflict with both these requisites.

However, there is another argument that we as a society have already given consent tacitly. We must consider the benefits of safety and security we receive from the government in exchange for lost freedoms Professor of Law and Philosophy at University of Virginia, A. John Simmons states, “To the consent theory account of political obligation is often added the claim that giving one’s consent to a government’s authority involves no ‘net loss’ of freedom.

Since the American public is aware of the situation, due to heavily publicized acts of recent terrorism, the first requirement of implicit consent is fulfilled. The NSA has arguably defended the U.S. from much potential harm, including that of a repeat 9/11. By exposing their policies, the NSA would be compromising the amount of protection that could be provided to the American people. Thus, it is in the public’s best interest that they remain unaware of the exact procedure, and the second requirement of understanding be disregarded.

All in all, while the NSA has defied the constitution and ignored the preservation of America’s right to privacy, it has done so in good faith and with good reason. The primary reason for a presiding power is to establish a safeguard against harm. We have witnessed too much destruction and too many deaths resulting from organized attacks. We should not be against any policy that endeavors to diminish, if not eliminate, such ruination. If we are truly referencing the law of our forefathers to end the NSA controversy then we should look to the first document of independent America. “[Each man is given upon birth] certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” It is quite difficult to argue that any American would not consent to the sustenance of these rights, no matter the method or means by which it is sought.

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