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

Handing them a victory

[dreamchaser]

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.

Re:Handing them a victory

[Anonymous Coward]

If we allow our rights to become significantly abridged, then we have let the terrorists win.

I often see comments like this. I think they are inaccurate.

The terrorists' primary goal, I think, is to stop our interference in Muslim countries and the Mid-East region. They consider it sacred ground and don't want us there with our decadent Western morals. The message is "you can't interfere in our part of the world without your lives being affected."

Eventually, of course, they'd like to convert the rest of the world to their brand of radical Islam (or, presumeably, kill us). But I don't think that was the purpose of these terrorist attacks. So I don't think they care about whether our privacy is affected. Curtailing our liberties in ways which have no bearing on their radical Muslim beliefs won't affect their thinking of us as the "Great Satan."

"Letting the terrorists win" would involve lifting the sanctions of Iraq, stopping interference is Mid-East wars and politics, or halting support of Israel. Of course, since the view is "we can't give in to terrorists", it may curtain us from doing the right thing... for example, reconsidering the sanctions of Iraq (which hurt the people of Iraq far more than Saddam) or political interference (Saddam Hussien and bin Ladan were once on "our side"). There are no easy answers.

I think changing our views on foreign policy might encourage more terrorism as the terrorists will see their attack was successfull. But changing our views on privacy issues, from the terrorist's perspective, just makes their "job" harder. It may or may not discourage them, but I don't think it will encourage them.

So I think discussions of the privacy issues should be strictly based on the merits of protection vs. the merits of protecting our rights, without worrying about whether the terrorists consider them victories or not.

In any case, the overall issues are too important to let pride enter into it.

Re:Handing them a victory

[zpengo]

I heard it stated very concisely on the radio yesterday. Someone said, "We must not only protect American citizens, but the idea of America itself."

The ideal of "freedom and justice for all" is more important than any number of American lives. That's what turned me around on the civil liberties debate; I got tired of hearing all the people whining about invasion of privacy, etc., but when it comes down to it, the ideals of this nation are what made it great, even if it meant a lack of security in some areas, as well as loss of life.

This is a great country. It's worth our blood to keep it that way.

Re:Handing them a victory

[DaveHowe]

I would agree with this, but for one point - There is no reason to assume that increasing LEA and "spook" rights to intercept communications, decode private information and break into your machine remotely will in any way increase their ability to locate terrorists.

Think about this - the FBI rushed Carnivore into service at the "freemail" providers like yahoo, when there was no evidence that the terrorists even knew freemail existed - why would they? the internet is banned for the afgan people; the phone service barely exists there, never mind ISPs. If any communications took place outside of the original mission briefing, they were almost certainly by way of "innocent sounding" telephone conversations and/or letters with hidden text. consider the following conversation:

• Hi John! have you booked your tickets yet?
• Yes, I am flying out of boston at 8am; Hoping to meet up with Clive at the WTC around 9
• I am sure you two will make an impression there; I would come too, but I have to attend a meeting at the government place about that time..

Ok, a little contrived - but you see my point. there is *no* way someone, even suspious of one or more of the parties involved, could have guessed at their real plans from that conversation - and they would have to monitor *every* phone call in america, no matter how innocent, to pick it up at all.

Similar statements could be made about almost any of the measures proposed - for each one you should be asking yourself "what will this achieve? will the cost of giving this up be matched by a equal gain in the protection I will get from my government? In this case, the answer is no. it is an attempt to exploit the grief and suffering of the american people to push though "reforms" that the american courts and people have been rejecting for years now. Would you really want the US to be the only country in the world where online banking is insecure, because you have to make sure the police can decode it, and almost any private eye can bribe his way into a couple of juicy keys?

Its very simple really...

[Nos.]

Security and freedom are inversely related. If you have a very secure safe environment, you've more than likely given up a lot of personal freedom. On the other hand, if you have complete personal freedom, chances are you are vulnerable to these (and other) kinds of attacks.

The question then becomes, where is the balance. What amount of freedom are you willing to give up to feel safe?

Primary argument I see around

[weslocke]

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...

More insanity from people who do not understand

[Friendly]

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

Remember J Edgar Hoover

[Gorimek]

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.

No no no

[TomatoMan]

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.

I think, John...

[Todd Knarr]

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 these measures are cheap, but not right.

[ARR0]

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.

Nope, it's not

[YIAAL]

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.

Absolutly Not!

[pgpckt]

Jon is wrong here. This is not a temporary fight. It never is. The Taliban has accused the United States of using a pretext to try to hurt Afghanistan or hunt down Bin Laden. I know passions are running very high in the US congress right now, and congress has all the pretext it needs to take away our rights. Not just for a little while, but forever.

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!!!

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
-Benjamin Franklin, Historical Review of Pennsylvania, 1759.

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!

Perspective, please

[MacGabhain]

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.