The ethical permissibility of the Patriot Act hinges on promoting the better good, or the means justify the end argument, in short: utilitarianism. The utilitarian argument for the Patriot Act allows it to be ethical, as it promotes the better good, and finds the loss of privacy worth the gains in security. I will contend to argue it is unreasonable to use this method of ethics to argue that the Patriot Act is ethically permissable and this argument should be categorically rejected.
However, there is a flaw in the calculation of this utility. Say we are debating another topic, such as outsourcing and we want to weigh the utility of it. We could take a company that outsources and look at all the pro’s and con’s and apply metrics (even if subjective) to get the net utility value, and then compare that net against a non-outsourcing company utilizing the same subjective metrics. This could be replicated through hundreds of companies and we could construct a theory on the ethical permissibility of outsourcing. It would be subjective, to an extent, but utilitarianism always is. So when we examine the Patriot Act and look at the utility and give value to the gained security, incidents of terrorism statistics, loss of privacy and potentiality of false accusations- we will come up with some subjective utility value. And the utilitarian argument would say if the number is positive then it is ethical, as it promotes the good for the majority. But, what are we comparing it to? We do not have a control model to show relativity. So, now we end up in a situation where the value assigned is subjective and the net utility value is arbitrary because we do not know what the alternative would have lead to. You could argue that I am being too harsh, as all ethical arguments are guilty of this when abstracted into a macro argument, which may be so. But, most ethical arguments can be assessed from a micro (individual level), but because the Patriot Act is about promoting national security, it can ONLY be assessed in the macro. Similarly, would be the ethical argument about climate change, but that is even more abstract as we do not have a control and it also requires long-term projection of future events, which complicates things further. But, for now, we will stick to the Patriot Act.
So if there is no control group for the Patriot Act to show success or failure, relative to life without the Patriot Act, then any event could be rationalized. For example, if there is a decrease in incidents of terrorism then it could be argued that the PA was successful. Conversely, if there is an incident of terrorism, then they could either A) claim that no system is perfect or B) find the security flaw that allowed this terrorist incident and suggest revisions to PA to ratify this flaw for the future, or C) both. However, we can never truly know if this path was the just path. Even if you want to explicitly cite a specific incident of terror that was thwarted by Patriot Act provisions, and this would not have been the case if the Patriot Act were non-existent- this would be an irrational argument. Fallacious by counterfactual fallacy- as it’s fallacious to assume the incident of terror was deterministically fated and that other events did not promote/negate it from occurring. For example, I could say that I wish was born in Switzerland because I think it is a nice place to live and my life would be better in Switzerland. However, if I was born in Switzerland I can’t assume I would have had the same life and ended up in the same career path…in fact, almost NOTHING would be the same by merely changing the circumstance of birth. Its illogical to assume we can re-construct alternate realities with any authority or probability and, a fortiori, strategically construct them to fit our agenda and/or bias. So in reality, without a control group (alternate reality), there is actually no way to determine with any reasonable probability the success or failure of the Patriot Act through utilitarian calculus as relative to the alternate route. Therefore, from a utilitarian perspective it can’t be proven good or bad, in short: it is amoral.