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Computers, Privacy & the Constitution
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Secure and Free
-- By ShakimaWells - 05 Mar 2013
When, on September 11, 2001, Al Qaeda operatives launched the largest terrorist attack on US soil in the country's history, it took Congress a mere six weeks to muster a legislative response geared toward protecting the morale and physical security of the stunned nation. The result was the PATRIOT Act, a bill that substantially expanded the government's authority to engage in surveillance activities over US citizens, particularly in regards to searches, wiretaps and other intelligence and law enforcement activities. It would not be long, however, before civil libertarians and other groups would begin to question the impact of the bill on fundamental American freedoms. In 2012, the BBC announced that the UK government was also launching a new legislative response to crime and terrorism. It reported that the government planned to introduce a new legislative initiative that would take the fight against terrorism and other crimes to cyberspace. In particular, the government would be able to monitor the calls, emails, texts and website visits of UK citizens. In the United States, such legislation would have to contend with the provisions of the the fourth amendment, which protects Americans from unreasonable searches and seizures. However, since 4th amendment arguments arguably did not stop legislation such as the Patriot Act, could legislation like the UK Act, be eventually (and constitutionally) be passed in the US?
Terrorism scholars such as Bruce Ackerman and Philip Bobbitt argue that western nations remain vulnerable to terrorism, including nuclear, biological and terrorist attacks which, if carried out, would threaten the social, political and economic stability of their governments. Not only are governments charged with the duty of protecting their citizens from such attacks to the greatest extent possibly, but they must also be seen to be doing so and have infrastructures and policies in place to deal with another attack should it occur. Despite this very important function of government, it is also the case that the continued existence of these very same societies also rests on their ability to remain free. An America that is physically safe, but nearly unrecognizable in terms of basic freedoms would arguably be as crippled by terrorism as one under physical attack. Indeed, it is perhaps not so much whether the country can be secure and free as that, in order to win the "war on terrorism," it has to be both. Traditionally, American freedoms have included rights, such as that to assemble or the freedom of speech or the right to a privacy. The increasing relevance of the internet and online activity in the 21st century, however, has meant that many of these rights have taken on a new dimension that many argue should include an individual's online activities.
Legislation such as that introduced by the UK may serve the needs of security by expanding the powers of law enforcement and the intelligence community, but substantially invades privacy as it pertains to internet activity. THe BBC reported that, for instance, the UK legislation would allow officers to obtain information on a website that an individual has visited. Internet companies will have to install special software that would allow the UK government to listen, in real time, to electronic communications without a warrant. The lack of a warrant requirement is perhaps one of the more troubling aspects of the legislation as warrants traditionally ensure that there is some check on the powers of law enforcement and some mechanism to ensure that their powers are only used where necessary. Like the civil libertarian groups that opposed the Patriot Act, some UK observers have suggested that the UK legislation represents an unwarranted extension of government authority that will not only affect suspected terrorists and criminals, but regular citizens.
In the United States, however, policies such as the PATRIOT Act and the aforementioned UK legislation protects US citizens from unreasonable search and seizures. As noted by Professor Eben Moglen, the historical context that gave birth to the fourth amendment contrasts substantially from modern realities. Whereas the amendment may have originally been construed to apply to the physicality of an individual's home, much of a modern person's personal information and activity can and will exist in cyberspace. Simply limiting the protections of the fourth amendment to the physical home of the individual may leave a great deal of the average American's life vulnerable to governmental surveillance.
The renewal of the Patriot Act by the Obama administration without much public fanfare, however, suggests that not only the government, but the legislature, executive and the public have become more accustomed to the government encroaching on even the more traditional realm of the fourth amendment, a man's "castle." What would stop the government, then, from passing legislation that would encroach upon an individual's privacy and information in cyberspace, a much less traditional locale? It can be argued that an individual is even more vulnerable in cyberspace than in his home as cyberspace collects substantially more facets of an individual's life- financial, social, educational, work, family- in one place. Indeed, in many cases, access to one internet presence might be substantially more invasive than a physical inspection of one's home, potentially giving the government access to an individual's social network, daily activities and perhaps even their written thoughts.
Of course, there has to be a balance between security and freedom. However, as noted in the article, surveillance of this type has been likened to that which has been seen in more authoritarian regimes, such as China. While there is little evidence that such power will prevent another attack, it is more clear that such measures are a threat to individual privacy. It is interesting that while such measures are being passed over a decade after the last major terrorist attacks in the West, they are still being cited as anti- terrorism legislation. While the lack of attacks in the interim is surely a good thing, could it also be that there is something else spurring our acceptance of such drastic expansions of government authority: fear?
Since you wrote, the FBI general counsel has identified real time monitoring of voice and chat communications as the Bureau's highest legislative priority this year, and the White House is evidently considering how far it believes the public mood will allow it to go. That, the role of public opinion, is the crucial element in determining how far the State (any State in the world not prepared to use violence directly against its people) will go at any given time towards complete real-time surveillance. Because it is now possible, every State will want to do it. The raison d'etat will be identified with whatever it is the public most fears, and the State will move in the aftermath of everything that makes the public afraid. Because the process is irreversible in practice, everything given up during periods of temporary fear is lost forever, as voices in the English constitutional tradition have said for centuries. So you can put the first part of your thought concisely. That allows you to concentrate on the second: Knowing this is happening and will happen, what does humanity do about it? We face this problem as citizens everywhere, in "free" societies and tyrannies alike. This is something happening to human society in general, and as people within societies we have to decide how much we care and what to do about it. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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