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Civil Liberties And The New Reality
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.
If we allow our rights to become significantly abridged, then we have let the terrorists win. I do not claim to have the answers, but we are treading on a slipperly slope that could lead to the loss of more than just a little privacy.
Certainly, we would all be physically safer if we lived in a totalitarian regime with no privacy protection. Would that be worth the cost? No, Katz does not advocate this, but the very subject of the erosion of our civil liberties is a dangerous one. Yes, we need a national debate on this. Hopefully cool heads will prevail.
The question then becomes, where is the balance. What amount of freedom are you willing to give up to feel safe?
The primary rationale I see bandied about is that during wartime every populace has to give up certain rights or to allow the governement the ability to infringe on those rights if need be. Be it the ability to free movement during World War II (what with gas rationing and etc) or freedom of the press (to not relay possibly sensitive information). But most of the civil liberties that have been infringed upon in the past have seemed to be ones that are very apparent.
The problem I have with the current batch of liberties to be thrown away is that they aren't that apparent. Sure wiretapping laws are making news right now, but 4 or 5 years from now they won't be slapping you in the face in the same manner that gas rationing would. (Does that make sense?)
Past liberties given up have been so apparent that as soon as the crisis/rationale was over, people would've clamored for those rights back. However with wiretapping/backdoor encryption/etc the process is so transparent that I can't see enough people even realizing that they're still in place to create enough of an outcry to get them back. (whew... thank god for runon sentences)
But all that being said, if that's what it actually takes then I'm for it. If it's just the FBI using the current crisis as a free ticket to push the same agenda that they've been pushing for the past few years... well...
'Life is like a spoonful of Drain-O, it feels good on the way down but leaves you feeling hollow inside'
These new rules WILL NOT prevent future disasters. These rules will not only be used to spied on suspected terrorists (read every group that disagrees with our government or those in power.) We need to get out from under this rock that GW has put our country. We need to participate in the world, we need to cooperate with foriegn countries and work together to stop this stuff. We need to stop pretending that the USA is the end all and be all of the world and that we can go it alone. I will not give upmy freedoms because some a-holes decide they are going to blow stuff up.
How far behind are ID cards and strip searches to get in the mall. Screw that, I say we actually enforce the laws we already have and cooperate with other countries. That is the best way, not trampling the rights of everyone.
Friendly
But it's important that we think about each liberty, each law that goes through Congress, instead of writing a blank check for the gov't to cash. Some things make sense; wiretap procedure could be cleaned up slightly. On the other hand, there are issues like the potential ban on strong (un-backdoored) crypto. How does a single country banning this tech hurt the terrorists, and is it anything more than a knee-jerk reaction?
I'm not worried about compromising on a few areas, especially when they make sense. I am concerned that we're going to give the green light to every sort of incursion on our freedoms, even if it does little to stop terrorism.
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'm totally with you here. Absolutely.
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?
Yup. And you used the magic words: "to get warrants." This warrantless-wiretap stuff is scary. It would be one thing if it were windowed (a sunset date, say, 90 days from now), which I think we could tolerate for the purpose of the immediate crisis. But to forever and ever have wiretaps without a court order? That's no good.
But here's the part about your statement that makes me uncomfortable. I assume that by "intercepting" "encrypted files," what you mean is not merely for federal officials to possess the encrypted data, but to be able to decrypt that data. And I can't say that I agree with that. Firstly because of the technical problems: any encryption with a backdoor is much, much easier to crack. (IANAC [I Am Not A Cypherpunk], but this is what I gather to be the case.) Secondly because what that really is, is a law against secrets. "There can be no secrets." And a law against encryption is as worthless as a missle defense shield. If people want to tell secrets, they'll meet in person in a dark alley. But to fatally weaken electronic secrecy for this purpose, I think, is going too far.
I'm willing to give up a lot of privacy on a temporary basis (and some on a long-term basis) to prevent this from happening again. But to permanently surrender electronic secrecy? I think that's asking too much.
JM2C,
Waldo
J Edgar Hoover ran the FBI for 48 years, and became the most powerful man in US history (including all the presidents) by spying on it's citizens and using that information.
I think this shows that the dangers are very real and that the government can not be trusted to only use spying powers for good. They'll use it however they please.
Of course, spying technology has advanced immensly since then.
The US government is demonstrating an unprecedented amount of unity. Which of course is a very bad thing. The main reason why our government is often unable to screw people over effectively is the automatic opposition across republican/democrat lines. Without that, and with the full support of other important officials, just about anything can become law if it can be called "antiterrorism." Add in the fact that congressmen don't listen to engineers, and even good ideas could result in bad implementations. Our government has the capability right now to make some very big mistakes that could take years to correct, so there is no such thing as overreacting. We must substitute our voices for the usual voices of opposition that have gone silent, so that our nation's delicate emotional state does not give the terrorists yet another victory to celebrate.
Hindsight is 20-20.
You look back, and you can clearly see that the US and other governments were heading this direction.
It's little surprise, then, that they are taking advantage of this opportunity to achieve their goals much, much faster, with far, far less trouble from the masses.
We'll soon have a passively numb population who have no expectation of privacy, no desire to become informed, and no passion for influencing the direction of government.
Baa! Baa! Baa!
Sheep are good. They buy consumer products without questioning their value, quality, or necessity. They pay their taxes without questioning where the money goes. They go to work and meekly accept lousy pay and lousy conditions. They don't challenge the laws. They don't cause trouble.
That's what the corporations want. That's what the governments want. And that's what we're going to get.
--
Don't like it? Respond with words, not karma.
If anyone should be allowed to spy on anyone else, then it should be the citizens of the US whom are allowed to spy on their own government in order to keep them in check, not the other way 'round. Allowing a government to spy on its own people is right up there with the KGB and Communism. Didn't we fight that once?
--- What?
I agree with Katz, surprisingly, but I do find that he has some problems with his statement. I don't think there is such a thing as 'post-WTC attack'. We've always lived in a world that has terrorists, it's just that America has been fortunate enough not to have to deal with too much of it (unlike some other countries). I don't think we need to take any liberties away, we only need to re-evaluate what is needed to make the intelligence gathering easier when certain giveaway signals are given.
government involvement in
your life if it meant more
security against terrorism?
Last check:
Yes 71% 44,665 votes
No 29% 18,202 votes
Perhaps part of freedom is being able to surrender rights, at best only temporarily.
"If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; and posterity forget that ye were our countrymen." --Samuel Adams
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
Security and freedom are inversely related.
No, this could not be more wrong. Security and convenience are inversely related. Security and freedom are not. This is a very important distinction.
-- http://frobnosticate.com
I think the first thing that needs to be asked about all these proposed new laws is, "Would they have done anything to stop the WTC incident had they been in effect before it?". For example, would the new wiretap powers have done anything given that the government doesn't seem to know that communication between the terrorists was going on at all? If US-made crypto tech has back doors or key escrow or other access mechanisms installed, do you think the terrorists will give up what they already have and switch to it? And if they don't, will those access mechanisms help one bit? Will additional restrictions on checked luggage and manifest checks stop someone who walks past a bored security guard carrying a knife in his pocket and boards the plane?
This is my heartburn with a lot of what's being proposed. Not that it may restrict our rights, but that it will restrict our rights without doing anything about the problem being used to justify it.
All of the changes being suggested and argued about have one thing in common--they provide a cheap alternative to actually solving the problem.
It would be possible to solve the problem of security in our skies without taking away any of our liberties. Make sure there are (frequently) law enforcement officers on board flights. Yes, this is being considered, but it is expensive. It's cheaper to build a database and track each person flying. It is an invasion of privacy, but it is cheaper.
It would be possible to solve the problem of Middle Eastern terrorism, but it is expensive. It would require assistance to the desperately poor parts of the region, to build schools, hospitals, and the other things they need to support a decent life. It would require us to be willing to pay a higher price to get oil that is not purchased from tyrants. It would require us to give up our notion of "client states" and recognize that the people who are considered too poor and powerless to worry about today will be desperate enough to follow a madman tomorrow. But it's cheaper to try and spy and assassinate our way out of the problem. It won't work, of course, and will create bigger problems down the line, but it is cheaper than solving the problem.
The world didn't change last week, really. Many innocent people lost their lives in a senseless tragedy. The tragedy will be compounded if we don't start educating ourselves about the world we live in, and if we don't realize that there is no person on this planet too poor, too different, or too desperate to be important.
There's no automatic relationship between freedom and security. Many times in American history, when we have suppressed freedom in wartime we have gained no additional security at all. For example, the interning of Japanese Americans didn't increase our security. Banning the teaching of German during World War I didn't increase our security. Hoover's FBI blackmailing didn't increase our security.
It is a serious error to assume that because sometimes increased security reduces freedom, anything that reduces freedom increases security. Things don't work that way.
InstaPundit! Ahead of the Curve Since 30 Minutes Ago
millions more are in danger of losing certain rights because of the new wiretapping and surveillance authority the Justice Department is seeking.
That is correct. The way Americans have been talking, they are ready to sign away the constitution. "Sure, search my email, scan my phone calls, whatever it takes" has been the rally cry of the people. The government doesn't have to try too hard to justify the removal of privileges. Don't you ready your own message board? In a different article (search is down), a representative in congress said "Once your rights are taken away, they are rarely given back. No one in Congress wants to seem soft on terrorism or soft on Crime." We are talking about amending surveillance rules, and they may never be amended back.
Many people worry that once these powers are granted, they will never be given back.
Yep. See the above. Laws made in the heat of passion stay on the books. Law makers won't change the law for the appearance it makes. Try reading the article that was posted by CmdrTaco about the subject of liberties and the rush to have them taken away.
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?
The short answer is Yes, it is unreasonable. "Here is a good idea. Let's ban crypto. And screen cell calls. And read all email. And Faxes. What? You are against this? You must have something to hide!" I can see it now. Besides, if you implement the above, the bad guy can always use another system. The Bad guy will figure out a way to communication. Meanwhile, the good guy (you too Jon) will have all our private communications analyzed and recorded. (sarcasm) Sounds like a peachy system to me! (/sarcasm)
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.
Damn, looks like you don't read slashdot after all. Most of us are FAR from happy about giving up our rights. Most of us hate to register (which is why every time there is a reg. required link in a slashdot story, someone always posts a way to get around it). You are really out of touch Jon if you think the people are happy about our losses of privacy and the sharing and selling of personal information.
. Any new laws to fight this new kind of war ought to be temporary, and self-expiring, perhaps subject to annual review.
HAHAHAHAHAHAH. Yea right! Even if they were self-expiring or needed to be reviewed, no one would ever dare vote against a proposal that "fights crime." They wouldn't have a job any more. Even if the law did go away, you are still talking about a couple of years of impeding MY and YOUR freedoms. I don't remember a suspension clause in the Constitution........
I will NOT support any measure to take away MY freedoms, even for a little while. If the CIA (or whomever) wants more power to spy over seas, I can support that. I will NOT support any measure that increases the government's ability to spy on Americans like myself. ABSOLUTLY NOT!!!
Sounds like pretty good words to remember at a time like this. What price are you willing to pay for freedom. I will protect the security of the United States, but I will NEVER agree to ANY SUSPENSION of FREEEDOM!
Lawrence Lessig is my personal hero.
What the fuck is the matter with you people ? Katz lives a short distance from the Site of the disaster... he posts a well-written article about the potential change in perspective in YRO, drawn from his own recent experience... and what follows ? "STFU Katz". Do you even read the articles anymore ? This isn't intended so much as an information piece as it is a thought piece. If you don't have anything interesting to say, then STFU Snapple boy.
I alternate between posting +5 and -1 Comments. Karma: +53 -47 = 6
Those who are shouting loudest about freedoms are those who were least (physically) affected by Tuesday's catastrophe.
Note that I emphasise the physically part. Everyone on the planet (well, maybe with the exception of some stone-age tribes in the Amazon jungle) was emotionally affected. The biggest distinguishing factor was the physical impact. The loss of a family member or friend; or even just being in New York has altered some people's worlds drastically.
Yes, I really do believe it's that polarized, and yes, I really do believe that many of the arguments are entirely selfish ones. Me, me, me. Give it a rest! There happen to be 5,999,999,999+ other people who happen to be affected by all of this. For once, humanity needs to think on a GLOBAL scale, not merely on what they can personally get out of it.
To those who advocate the loss of freedoms -- exactly what is this supposed to achieve?
Ok, now to those who argue that freedoms should be protected at all costs...
The bottom line is that NEITHER approach works. No great surprise. You cannot add an unbalanced approach to an unbalanced situation, and get a balanced society.
It is impossible to prevent these kinds of hostilies by adding yet more hostility to the equation. The maths is very simple, but those in England and Ireland learned that it is also painful to accept. The only answer to war is peace and the only answer to factionalism is unity.
Sure, there's still violence in England and Ireland, but people aren't living in fear that pubs in Birmingham, or shopping centers in London or Manchester are going to turn to smouldering rubble the next day. Disarmament on a real scale has become a very real possibility. A BIG change from the last 20 years, where bomb drills were routine in schools, celebrities got gunned down or blown up, and transport systems were regularly targetted.
There may very well be "sleepers" in the American population, agents from all sorts of countries. America has probably more than a few of its own in other countries. The ethics and international legality of such agents can be debated to the ends of the earth, with no solution likely.
But if there ARE "others" amongst us, how are they remaining others? How are they able to have zero empathy for those they live around, every day of their lives? (After all, if they DID have empathy, they could not do anything to harm those they cared about. Empathy is a far stronger force than all the agencies in the world.)
In short, why are Americans so bloody frigid that Afghans can live here for many years and not gain one iota of compassion? Sure, they're the ones who flew those planes, but ALL OF US are responsible for creating a world in which they were emotionally capable of doing so.
THAT is the key to all of this. Meaningless phrases and turgid responses don't bring people closer. They are the wall we hide behind, to avoid people. We avoided them, alright. We avoided them so bloody well that 18 of those people decided to wipe out 6,000+ others.
Pink Floyd has it absolutely right. Our callousness, coldness, cruelty, emotional abuse, our entire self-centered perspective, are just bricks in The Wall. And, as their video described, The Wall leads to militancy, extremism and violence. Just as we've seen in Afghanistan.
The choice would seem to be simple - polarity and the continued building of The Wall, or tolerence & peace.
I know which I'd prefer, but I also know which way the world is heading. Does anyone have a spare cryogenics facility they can lend me?
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
The abridgment of our rights is in no way a "win" for terrorists. Yes, it is a loss for us, but I have trouble with the idea that a bunch of l33t h4x0rs not being able to sit around chatting about their latest music swaps in total anonymity is anywhere near the loss of, say, containment around the Monticello Nuclear Power plant, just NW of Minneapolis (leading to 7 figure death tolls in the Minneapolis area and the forced evacuation of everything between here and around South Bend). A light plane loaded down with fuel could break through quite easily, with a clean hit. That, however, requires organization and planning. They need schematics of the plant, they need access to a plane (which will either be registered or suspiciously unregistered), they need to make use of a legitimate airport to avoid blowing up on take-off with all the bouncing barrels of gas, etc. The FBI has had remarkable success preventing this sort of thing by knowing what to look for. But over the last few years, they've increasingly lost the ability to look.
And there's the big hole in the "Oh no! We're losing our freedoms!" position. Let's say that we give every single government emplyee the right to read everyone's email and access everyone's web habits and everything else. We STILL haven't lost any "privacy" that we had 20 years ago. Human's have never had anything like the ability for anonymous, private communications that we've developed in the last 3-5 years. It's NOT something inherant in the human condition. It's something we allot to ourselves, and, as such, needs to be alloted reasonably. Now, when you've aquired a controling interested in every internet backbone in the country, you can make everything private and anonymous. Until then, you have NO RIGHTS not allocated you by contract or law. You're using an artificial communications system owned and maintained by other people, for which you're not even playing close to enough to cover the costs incurred by your usage.
The poll also says "if it meant more security against terrorism". To assume that losing civil liberties would achive this is naive, but I think many Americans will make that assumption.
More govt intervention in people's everyday lives won't stop terrorism, but it would give polititians something 'good' to wave around when the next election comes. I suppose they are just betting on people's anger lasting that long...
___
The way to see by faith is to shut the eye of reason. --Ben Franklin