Civil Liberties And The New Reality

We need a broader discussion about the tech world's growing and sometimes simplistic anxieties about free speech, privacy and other civil liberties in the wake of last Tuesday's attacks. It's been suggested that while thousands have lost their lives, millions more are in danger of losing certain rights because of the new wiretapping and surveillance authority the Justice Department is seeking. Those are valid worries. But there is a new reality in the post-World Trade Center world, one that now may have to balance some rights against others and prepare for aircraft-bombs, biological and chemical attacks,and horrific assaults on civilians. As bad as it was, it could have been much worse. I'm not sure I'm ready to tell those kids whose parents didn't come home last week that they and others down the road just have to suck it up because people may be unwilling -- even temporarily -- to lose any measure of privacy.

Politically, America is an intensely polarized country, where discussion of issues quickly tends to bog down in notions of what is "left" or "right," thus ideologically pure, and consideration of a wide range of issues, from gun control and abortion to privacy and surveillance -- quickly freeze people into opposing camps characterized by rigidity, hostility and absence of communication. On the Net, people with particular interests increasingly often talk only to one another and consider only their own particular values and beliefs.

In fairness, let me declare my own warped perspective at the moment. I live just west of New York City, felt much affected by a visit to the attack site, and live in a town which has apparently lost somewhere between 30 and 40 people. Elsewhere in the country, life is beginning to move on, as it should, but in greater New York, it's still all death, all the time, on TV and in other media. As bits of bodies get pulled out of the wreckage, people give up hope of finding people from the wreckage, people give up hope of finding the people they love, and disruptions continue as the funerals and memorial services increase. People here remain numb and heavy-hearted.

It's easy to be suspicious of Attorney General John Ashcroft and of the FBI he heads when they say they need broader powers to wiretap, monitor the Net and conduct surveillance of Americans. Many people worry that once these powers are granted, they will never be given back. And some of these people don't have a comforting record of sensitivity when it comes to protecting privacy, free speech and individual civil liberties. But the terrorist attack has changed the entire context of these discussions, putting the issues far beyond knee-jerk reflexes.

But there is also something reflexively knee-jerk in the automatic "they-are-taking-our-freedoms-away" response from certain quarters online. The Justice Department isn't proposing dropping all restrictions or warrants or oversight regarding wiretapping and surveillance. They propose to ease some of them. This may or may not be a good idea. But it needs -- deserves -- to be rationally and openly considered.

First- and second-generation Internet dwellers value their freedoms, and have often had to defend them. Our government, sponsors of the CDA, Carnivore, and the DMCA -- it doesn't have a noble history here. Few people in government have ever made privacy and freedom online a political priority.

But the cataclysm at the World Trade Center is a historic event, and many people do, in fact, need to "get it." We will be living, thinking and behaving differently. Many of us -- if we and our families want to live safely -- will have to redefine our traditional politics, and consider new ways of defining certain rights.

The night of the attacks, reporters asked a New York City fire official why the city put out a desperate call for gas masks and vaccines that morning. "We thought one of the hijackers might possibly be carrying Anthrax -- there were some intelligence reports about that." The official stopped. "If they had been," he told reporters, "there might be 100,000 dead people, maybe more."

My own record of yowling about privacy and the First Amendment ad nauseum is clear enough, so I feel entitled to consider some other points of view, especially this week.

Certain rights -- equality, liberty -- are considered inviolate. But almost all rights are subject to a series of checks and balances, always subject to circumstance, never absolutes granted without reservation, in perpetuity, regardless of external circumstance. Yes, people online have the right to keep their communications private and people have the right -- I believe -- to move online and travel in the real world without their movements being monitored and recorded by governmental authorities. But people have the right to go to work without buildings falling on them, too.

This is how the WTC attacks have challenged our system of rights. The thousands of dead and millions of others who work in vulnerable office towers, or travel or study or live near airports (or schools, or ports, or national symbols) have rights too, and they have been grievously violated.

The government has an obligation to protect them.

These terrorists are technologically skilled, government authorities say. They use the Net to e-mail one another, and to send encrypted files, sometimes online, at other times via Zip disks or other media. They move money online, make plans there, thus avoiding possible interception by traditional intelligence monitors listening to phone and cell calls. Is it really totally unreasonable for authorities to seek broader powers to follow these conversations? Wiretap laws are not adequate for teaching these kinds of criminals. Existing wiretap laws require warrants for each telephone, even though criminals and terrorists might use dozens of phones or a variety of communications systems.

If terrorists are proven to be using encrypted files, aren't government agents entitled -- even obligated, on behalf of the thousands of innocent victims and many more future victims -- to get warrants to intercept them? Would we really rather that our water systems be poisoned, or our cities choked with gas, or planes flown into schools and City Halls? This would have seemed silly hyperbole to me a month ago, but all of these things are now plausible in the post-World Trade Center world.

Many of us have already happily and willingly surrendered some privacy to Napster, Amazon, gaming sites, EZ-Pass toll systems, online retailers and other Web tracking services which have lists of our shopping, reading, entertainment habits and preferences. Corporations have abolished many conventional notions of privacy, while most Americans shrug it off as a new convenience. Is it really our position that Wal-Mart can own the details of our lives, but that government agents tracking those people who murdered 5,000 of our fellow citizens can't?

Nobody in his right mind would support a blank check for government authorities. Any new laws to fight this new kind of war ought to be temporary, and self-expiring, perhaps subject to annual review. There ought to be clear civil and criminal penalties for wanton violations of privacy and excessive monitoring.

But when something like the World Trade Center attacks occur, the challenge, it seems to me, isn't to retreat into our knee-jerk positions, but to pause and carefully consider the new reality. Any government's primary obligation is to protect and defend its citizens. The failure to do that last week occurred primarily, many terrorism experts say, because our existing intelligence institutions don't have the human resources, the technology or the laws to keep up with a sophisticated, well-funded, technologically-savvy network of murderous enemies. We might want to ponder what rights we owe the living and owed the dead -- the right to live, to be and have parents, to work or fly without being torn to bits or crushed in a collapsing inferno.

Comments

Re:Is Katz an unregistered telepath?

[FortKnox]

OMG! Revelation!

Jon Katz is Miss Cleo!!!!

Nuts!!!

[markmoss]

I'm not sure I'm ready to tell those kids whose parents didn't come home last week that they and others down the road just have to suck it up because people may be unwilling -- even temporarily -- to lose any measure of privacy.

I'd say instead that thousands of lives were lost because most americans have been brainwashed out of defending themselves. The hijackers did not need sophisticated technology to plan this -- just face to face meetings, and a few agreed upon code words so the necessary phone or e-mail messages would sound like normal business planning. For example, "The big meeting is set for Sept 11."

But the really weak part of their plan was that they did NOT have a way to smuggle real weapons past airport security. Instead, they depended on being able to bluff the passengers and crew with pen-knives, box cutters, and a cardboard box. And the terrible thing is that on all four airplanes, this was sufficient to get the pilots to the rear of the airplane and their own guys in the driver's seat. There was a time in this country when someone who tried something like that would have been beaten unconscious with carry-on luggage -- if not shot by someone carrying a real weapon. But we've not only taken away the weapons, we've taught people not to defend themselves.