Laura Henderson is promovenda rechtstheorie bij de Rechtenfaculteit van de Vrije Universiteit Amsterdam.
On 6 June 2013, the Guardian and Washington Post reported on the United States government’s collection of telephone and internet data from clients of numerous telephone and internet service providers. Both the Washington Post and the Guardian article avoided characterizations of the necessity or appropriateness of the data collection program. However, even factual descriptions emphasize certain facts over others. In doing so, the event is placed in a particular frame. The articles focused on the “indiscriminate” and “unlimited” nature of the data collection framed the data collection program as evidence of a fundamental change in surveillance laws.
With these reports, a framing war was ignited. Government officials reacted to the story with their own discourse. For example, the Director of National Intelligence stated: “For me, it is literally – not figuratively – literally gut-wrenching to see this happen because of the huge, grave damage it does to our intelligence capabilities.” The Director of National Intelligence framed the revelation of the data collection program as posing a serious threat, so serious that it “literally” violently twisted his inner organs. The Director of National Intelligence responded to the news reports’ frames by claiming the importance of the program to national security. President Obama also spoke on the issue, stating, “It’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience.”
Here, President Obama sets up a false choice between security and privacy. In doing so, he paints those concerned about the “indiscriminate”, “massive” and “unlimited” data collection program as foolish and unwilling to tolerate any amount of inconvenience. Moreover, President Obama seems to be operating on the assumption that 100 percent security is possible and desirable. Given such an assumption, the government may legitimately take any and all measures to increase the possibility of security even by the smallest margin. But this assumption is faulty. No society exists in which every possible source of danger is eradiated, especially without that very process of eradication leading to a lack of security for certain segments of society. Moreover, attempting such total eradication of danger would necessarily entail a totalitarian state.
The government’s framing of the data collection program as one necessary for the security of the state was countered by the whistleblower Edward Snowden. Snowden defended the leaking of the information with an appeal to protecting against a different threat. The whistleblower explained that US surveillance posed “an existential threat to democracy.” In Snowden’s eyes, this threat was greater than the threat of terrorism.
The US government has launched a criminal probe against the whistleblower and certain members of Congress have called for criminal prosecution. If prosecuted under the Espionage Act (18 USC § 793(e)), the case will likely turn on whether the whistleblower “had reason to believe” the leaked documents “could be used to the injury of the United States or to the advantage of any foreign nation.” In adjudicating this issue, what the whistleblower “had reason to believe” will be key. If the Bradley Manning trial is any indication, factual evidence of the actual damage caused by the leaks will be deemed irrelevant in ruling on this issue and the defense will not be allowed to present any such evidence. Thus, it is highly likely that the outcome of the framing wars sketched above, the frames that gain acceptance and are most frequently used by politicians, in media outlets and around kitchen tables, will be a determinative factor in deciding what Snowden “had reason to believe.”
Over the next months and years, these framing wars will continue to be waged, in response to this particular whistleblower and the information he leaked, in response to previous whistleblowers such as Bradley Manning, and undoubtedly in response to future whistleblowers.
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