The New Frontier: The Legality of Data-Sharing, Piracy, and the Threat of Cyber-Warfare

The world we now live in is a world of data. Information is now a resource that is widely traded, sold, and according to some, exploited. Mixed views on data-sharing and data-mining have led to a world where the NSA can freely spy and look for information wherever they choose, yet a person can be labeled a thief for sharing a digital copy of a DVD that they purchased. However, the growing number of “good guys” finding information is also coinciding with the ability of foreign nations to spy. Thus, the question is roughly devised around the legitimacy of privacy rights in the face of a potential threat. Such as the case of mass-arrests during war-time, is the invasion of digital privacy merely a reaction to the clear threat of cyber-warfare? If it is concluded that digital privacy is non-existent, then piracy and other data-sharing techniques may fall may merely be a cultural by-product of our new data-age. This is further complicated by the conflict of whistleblowers vs the NSA. On the one hand, data may be free and open – therefore, the NSA “leaks” were merely a product of culture. However, on the other hand, there are reasonable exceptions that nations take in order to protect the interests of their peoples.

In recent times the case of Edward Snowden has become so inshrined in modern debate and discussion that it is practically a folk tale. Snowden released classified documents believing, “his only choice was to expose the NSA activities in order to spark public debate about what the NSA was doing, and to stimulate reforms” (Fidler 2). To some this is an act of heroism, others, treason. What Snowden revealed was much deeper than the revelation that the United States was spying on its own citizens. While this is constitutionally questionable, it is not necessarily within the global sphere to condemn. The greater issue, which unsettled many, was that the NSA had been spying on other nations. Worse than spying on enemies, or nations that may reasonably have suspicion for cyber-warfare, the US was spying on its ‘friends’.

The NSA was closely watching and gathering intelligence on, “foreign countries, including close allies and fellow democracies, and spying on international institutions, such as the European Union (EU) and the United Nations (UN)” (Fidler 8). If the NSA is able to so casually spy on other democratic nations, then there is no one to stop the NSA from going a step further, and divulging this information to government officials that may use this as a political advantage. President Obama callously stated that, “he did not know that the NSA tapped Merkel’s mobile phone”, and that “either the NSA was out of control or that spying on Germany’s top leader was not important enough for the president to know” (Fidler 8). Perhaps if the NSA is out of control it would be reasonable to limit their involvement, or their rights, in international affairs.

According to Bob Toxen, “a person, regardless of citizenship, always is entitled to all Constitutional rights and may challenge a violation. The only government defense is that no violation took place” (Toxen 50). This point is made briefly after discussing cases in which judges dismissed allegations against the government for breaching the 4th amendment right of Americans. The judge, unfavorably, ruled that because Snowden’s information was illegally obtained and released, there was no crime. In the age of digital information it seems to be a larger question of whose rights matter most, or at all: the government agencies, or the people the government agencies should protect.

While questioning whether or not the fourth amendment was infringed upon by the NSA, there should be examination upon the judges interpretation of Snowden’s illegal obtainment of documents, and the lack of a case against the NSA because of this. Switching gears to another example of cyber-data and the question of the law, and rights, we are faced with P2P sharing and piracy. On the surface these cases may not seem similar. A young mother was fined $1.9 million (USD) for downloading CDs that amounted to less than $60 in value (Da Rimini 319). Of course, the fine is substantial and disproportionate for the crime. This is not the issue that causes similarity. The defendant’s actions must have been tracked, either by the Internet Service Provider or persons that worked for the company. This, may in-fact have the same breach of the Fourth Amendment that was mentioned above. More importantly though, the case should not have been authorized because the initial gathering of evidence was not in accordance with democratic law. Cases like these draw a clear line when it comes to data rights. What is right and “lawful” seems to have more to do with those that have power, and less to do with the rights of the people.

Privacy, once a heavily regarded right, has been put to the test by the modern data world. Since websites technically “own” all the content placed on them (they own the domain, the database), it is interesting when we see companies that are selling the data of their users. This practice may seem strange for democratic nations such as the US, Canada, Britain, and other developed nations. However, as Sheldon S. Wolin points out in his book Democracy Inc, when discussing the U.S., “unlike the classic totalitarian regimes which lost no opportunity for dramatizing and insisting upon a radical transformation that virtually eradicated all traces of the previous system, inverted totalitarianism has emerged … in seeming unbroken continuity with the nation’s political traditions” (45-46). Essentially, Wolin is commenting on the shifting ability of nations to feel entirely comfortable with, and normalize the act of data sharing. With focus on terrorism or “cyber-warfare” we are seeing a populace that is being conditioned to believe that going against the NSA is “unpatriotic”. Whilst many may point of that there are a great number of persons that oppose these dealings, it is a fact that Edward Snowden and Chelsea Manning have been tried and convicted for sharing information against their security clearance.

The ownership and legitimacy of data is constantly being challenged in the modern, globalized era. Most recently, Netflix caused a stir by enforcing geoblocking content and VPN (a way to “trick” the server into believing you are viewing from another location). The practice of accessing content that is not legally-owned in your country is one that has been practiced relatively unchallenged by Netflix consumers until new restrictions were put into place. This may be largely due to pressure from media companies, as the, “hack of Sony Pictures led to the release of emails where Sony executives apparently accused Netflix of being too permissive of VPN users sneaking through foreign servers”(Kennedy). Netflix began cracking down on the VPN restrictions, and “many tech experts speculate that the company’s hand was forced by pressure from rights holders to stick to its territorial licensing agreements” (Harris). Geoblocking, alongside piracy, raises concerns over the Internet and the ownership of content. Piracy alongside whistleblowing is currently viewed as an illegal transference of information. While the scale of punishment differs, both accounts are essentially boiled down to sharing media, content, or information that the person was not allowed to share.

While whistleblowing is illegal due to a perceived threat of government officials and entities, “piracy” is illegal because it challenges economic ideals and the Copyright of Media Providers and Content Creators. Though profit is often acknowledged as the major impact of piracy, “discourses around lost sales and reduced profit for film industries are complicated by piracy contexts where there is no mechanism for viewers to make their online purchases” (Beirne 18). Beirne, of Newcastle University goes on to examine the cultural impact and value that piracy has to international and global viewers. It is important to reflect that, “geoblocking practices encourage online film piracy, making piracy a central (sometimes the only) means of enabling wider distribution of important cultural texts to a minority audience for whom it may be difficult or impossible to purchase some films legally” (19). The minorities referenced in the journal are that of Lesbian viewers that do not have access to important stigma- reducing films in their countries. Since the films are so greatly important to their cause, the notion of piracy is skewed. Not only were the viewers unable to purchase the films legally, thus no profit was lost, the viewers and society reasonably benefited from the act.

The UN understands that ICT (Information and Communication Technology) is imperative to the social development of countries. It is recognized that, “[i]n the highly globalized information age, development cannot occur without such social and economic networks” (Weiss 353). Films are not the only pirated material. This can include text books, software, and other products that would significantly improve the quality of life or access of information to those receiving or “pirating” the product. Piracy is not cut and dry, as it “takes different forms, there are a diversity of pirates, they have different levels of impact on the film industry, and there are reasons why a viewership imperative may outweigh a profit motive in some contexts” (Bierne 22).

While the NSA has been under much scrutiny for their part in data obtainment, “Administration has argued that the surveillance activities leaked to the press, in addition to being subject to oversight by all three branches of government, are important to national security and have helped disrupt terror plots” (Cepeda 12). Whether or not this is true is less important than the notion that it is “widely accepted that the public release of at least some of such information poses a significant enough threat to the security of the nation that the public interest is better served by keeping it secret” (Cepeda 61). The information collected by these groups may or may not be important, and may or may not be against what is considered “reasonable”. However, the fact remains that in releasing these documents, Snowden and Manning (and others) could have been putting government institutions at detrimental risk. Since the information once given out was open and free, there was nothing stopping any one, or any peoples, from obtaining the documents. While there may have been just cause for releasing some documents that show US-Foreign relations, or that show specific cases of breach of government, there is little doubt that mass-release of classified documents is not in the best interest of governments, or the peoples it resides over. It is for this reason that you are unable to go into another’s home, take their documents, and publish them. Paradoxically, the NSA seems to be doing just that as they collect this information in the first place.

The NSA, in its defense, is combating a weapon in which, “any computer is a potential cyberweapon and anyone with advanced knowledge of information systems is a potential cybercombatant” (Dipert 385). Furthermore, Dipert mentions that there is reason to suspect cyber-warfare from other nations, such as China. Divert notes, “the Chinese government has hackers – cybersoldiers – organized into battalions and regiments” (385). Since any computer can be a weapon, it is imperative that the NSA and their agents are casting a very wide net. As well, their spying on “friendly” neighbors could be justified by the fact that it is easy to mask where a computer or a user is actually located. This, as we saw with geoblocking, is an issue that is common enough it has made its way to mainstream users. If an average Netflix user can “trick the system” into believing that they are in the US when they are in-fact, in Australia, then it is perfectly reasonable that a skilled and accomplished web hacker could use advanced means of this behaviour.

Since cyberwarfare is so widespread, the NSA and intelligence officials have noted that ,“the breadth of the collection is necessary to ensure all relevant information is available to the government and can be identified through searches in NSA’s database, rather than having more focused collection that might miss relevant information” (Cepeda 13). It follows a pattern of logic that a hard-to-identify crime would need as much information and data as possible. The threat is taken further with the notion that, “weapons or weapons systems can be rendered impossible for a time or even physically sabotaged by faulty messages or intrusions” (Dipert 389). Dipert asserts not only that these systems may be compromised, but they have resulted in failures in the past, and are, effectively, subject to vulnerability. Though the events he mentions were not due to cyber-attacks, they do show that the systems are “fragile”. He notes that the “Patriot anti-aircraft and anti-missile system in 1991 and 2003 and the disastrous shooting down of an Iranian civilian airliner by the Aegis Combat System (in 1988) aboard the US cruiser Vincennes that automates fire control of guns and missiles” (Dipert 389).

It is all to easily to quickly brush-aside the NSA’s legitimacy because they have been “spying” on those that they “should not spy on”. However, when it comes to ethics of espionage and spying, morality and ethics may or may not err on the side of intelligence operatives. If the NSA is truly counter-acting cyberwarfare then,“regardless of the nature and scope of threats to national security, moral statecraft demands that leaders devise public policies that involve war only as a last resort and that violence be limited, proportional, and discrimination” (Amstutz 129). Intelligence is unlikely to be intercepted by third-parties unless whistleblowers have become involved. For this matter, the violence is likely to be limited and proportional. On the question of the justification of espionage it is, “only through the use of gathered information by an enemy that a nation’s interest may be harmed” (Dipert 389). Initially, there is pause over whether or not the mass-collection of information is discriminatory. While it is not at the gathering stage, the use of this information is likely to be both limited, and only used in situations that are extreme, and therefore a discriminative last-resort.

The NSA, despite there being reason to doubt their motives, have compelling evidence that makes their operations seem, at the very least, beneficial to the ruling of democratic nations. Since cyber-espionage is a threat, it is crucial that there is a line of defense that aims to protect the interests of the general public, and of course, the nations on a whole. Just as the NSA is collecting data, so are other countries.

However, if we are to be a free and open society, with the exception of whistleblowers and those that do harm, it should be recognized that persons that share data, whether pirating, or merely due to lack of access, are not criminals but merely living in the age and generation that they are now exposed to. The limitation here, like that of the NSA, is the proportionate harm that the event causes. This is why whistleblowing continues to be illegal. It is not the sharing of data that is the problem or the moral issue, it is the possibility of harm that the event has caused. This, paired with the lack of discrimination, draws a clear line between the ethical wrong-doing of whistleblowers and the lack of ethical wrong-doing that comes alongside geo-blocking. Data-sharing, so long as it is used in cases where there is little to no harm, or the proposed benefit outweighs the proposed threat, should be considered legal.

Works Cited

Amstutz, M.R. (2008) International ethics: Concepts, theories, and cases in global politics. 3rd edn. United States: Rowman & Littlefield Publishers.

Beirne, Rebecca. “Piracy, Geoblocking, and Australian Access to Niche Independent Cinema.” Popular Communication. 13.1 (2015): 18-31. Print.

Cepeda, Simon. Nsa Intelligence Collection, Leaks, and the Protection of Classified Information: Background and Issues. , 2014. Internet resource.

Clarke, Richard A, Michael J. Morell, Geoffrey R. Stone, Cass R. Sunstein, and Peter P. Swire. The Nsa Report: Liberty and Security in a Changing World. , 2014. Internet resource.

Da Rimini, Francesca. “The Tangled Hydra: Developments in Transglobal Peer-to-Peer Culture”. Global Networks. 2013. 13, no. 3: 310-329.

Dipert, Randall R. “The Ethics of Cyberwarfare.” Journal of Military Ethics. 9.4 (2010): 384-410. Print.

Fidler, David P. The Snowden Reader. , 2015. Internet resource.
Kaplan, Bonnie. “Selling Health Data.” Cambridge Quarterly of Healthcare Ethics. 24.3

(2015). Print.

Kennedy, David. “Netflix Border Jumping May Be Over; Vpn Block: Reports.” National Post (index-Only). (2015). Print.

Rogers, Russ. Security Assessment: Case Studies for Implementing the Nsa Iam. Rockland, Mass: Syngress, 2004. Internet resource.

Toxen, Bob. “The Nsa and Snowden: Securing the All-Seeing Eye.” Association for Computing Machinery. Communications of the Acm. 57.5 (2014): 44. Print.

Vandekerckhove, Wim. Whistleblowing and Organizational Social Responsibility: A Global Assessment. Aldershot, Hampshire, England: Ashgate, 2006. Internet resource.

Weiss, T.G., Forsythe, D.P., Coate, R.A. and Pease, K.-K. (2013) The United Nations and changing world politics. 7th edn. United States: Westview Press.

Wolin, S.S. (2010) Democracy Incorporated: Managed democracy and the specter of inverted totalitarianism. United States: Princeton University Press.

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