Commentary: Security vs. Civil Liberties

Journalists, civil libertarians, and other professional alarmists cry "Big Brother" too frequently. But none of the privacy controversies of recent years--indeed, no event in modern history--has brought the prospect of Big Brother closer to reality than the World Trade Center horror. The thought that the same attackers might have access to biological weapons and other advanced technology forces us to reach for an equally powerful and futuristic arsenal with which to strike back. Suddenly, proposals are gaining legitimacy that were all but unmentionable a month ago. Calls are being made for the establishment of databases of information about what citizens look like, where they go, and what they do; for the use of surveillance technology to monitor the nation's e-mail traffic; and for the imposition of a national identification card, to name a few.

Many of these steps may well be necessary. Terrorism is a much greater threat than previously imagined. As a result, familiar arguments against government surveillance are going to have to be reconsidered. Of particular concern is the possibility that there may be still more terrorists living in the U.S., raising children, and doing an excellent impersonation of ordinary citizens. That means law enforcers may have no choice but to treat everybody like a suspect--which would justify much wider government surveillance than most Americans would have accepted just weeks ago.

NO BLANK CHECK. The increased threat doesn't mean, though, that the FBI, the CIA, and other law enforcement agencies should simply be given a blank check. Civil libertarians worry about government surveillance for good reason: Those in power have used sensitive personal information many times in the past to target political enemies and harass innocent citizens. This is fundamentally anti-American--and it isn't ancient history. Congress passed the Privacy Act of 1974 after revelations that the FBI had gathered files on everyone from Rock Hudson to Henry Ford to César Chávez. "It is so important for the debate to get past the point where one side is saying, `We've got to give up civil liberties,' and the other side is saying, `We cannot give up civil liberties,"' says University of Southern California constitutional law expert Erwin Chemerinsky. "It has to be a much more nuanced discussion of what civil liberties are being compromised, under which circumstances, and for what gain."

So while everybody wants more security--especially those of us in New York who witnessed the terror firsthand--we need some form of public debate before our liberties are permanently curtailed. Right now, because of the urge to react swiftly, there's reason to believe that may not happen. On Sept. 13, Senator Patrick Leahy (D-Vt.) blasted colleagues for passing an amendment expanding federal electronic-surveillance authority after less than an hour's worth of discussion. "Do we really show respect for the American people by slapping something together, something that nobody on the floor can explain, and saywe are going to change your rights to privacy?" asked Leahy.

Even in the midst of a national crisis, his concerns are not trivial. At a minimum, law enforcers should be required to provide some proof that the new security tools will do some good in the fight against terrorism, especially since many of the technologies under discussion are brand-new, completely unproven, and unlikely to be a cure-all in any event. Then, Congress quickly needs to analyze whether that benefit is worth the resulting damage to civil rights. Additionally, a "sunset" provision should be added to new antiterrorism laws forcing lawmakers to reconsider them in, say, a few years. That will help ensure that a measure passed during a time of crisis doesn't burden the country when the crisis passes. Finally, we have to be careful about how we define terrorists. Potentially, there's only a thin line separating them from protesters of globalism, Greenpeace members, or militiamen.

Unfortunately, U.S. history is littered with examples of ill-conceived overreactions to military threats. Abraham Lincoln suspended basic criminal rights for soldiers during the Civil War. The Espionage and Sedition Acts of World War I imposed sharp restrictions on free expression. Japanese civilians were interned during World War II. None of these measures, says Stanford University Law School professor Lawrence M. Friedman, did much to improve security. He worries that we could now be entering an era in which the threat to civil rights is even greater than it was during those episodes. "Those were all declared wars against identifiable enemies," says Friedman, author of A History of American Law. "This is more like the McCarthy period, which was obsessed with secret, hidden enemies. That was one of the worst episodes for threats to civil liberties."

SMART WIRETAPS. Notwithstanding that sobering background, many of the new security proposals are clearly worthwhile. Law enforcers are hemmed in by dozens of regulations that may no longer make sense in a world where a tiny band of crazies can murder thousands of people. One idea Congress is considering would give cops wider authority to wiretap suspects. Currently, wiretaps are obtained for particular phones, not specific people. That makes it possible for the target to evade surveillance simply by changing phones. Closing that loophole won't seriously impinge on the rights of law-abiding citizens.

Other ideas may be problematic. For years, law enforcers have wanted to place restrictions on software that encrypts online communications, fearing that criminals could use the technology to conceal their correspondence. So the FBI has pushed to give law enforcers a special "back door," allowing them to read suspicious traffic. Immediately after the World Trade Center attack, Senator Judd Gregg (R-N.H.) also suggested restricting exports of encryption software.

Trouble is, these steps wouldn't work. The bad guys can easily buy encryption technology from companies in Russia. What's more, installing a back door for law enforcers would make the software vulnerable to hackers. That, in turn, would make the technology less valuable to the energy, finance, and e-commerce industries that depend on it to guard their networks. "Cryptography protects an increasingly critical infrastructure," says Matt Blaze, a research scientist at AT&T Labs. "Although the wide availability of cryptography can benefit criminals, it also protects us."

Other aspects of the upcoming privacy debate aren't so black-and-white. Consider Carnivore, the tool the FBI unveiled last year to monitor e-mail and instant messages. It could be a powerful weapon against terrorists, but it also gives the feds unprecedented power to monitor what citizens say and do on the Net. Unlike a wiretap, which lets police overhear conversations on one phone, Carnivore lets them monitor everyone who uses the same Internet service provider that the suspect uses--whether they're under investigation or not.

Because the new terrorism threat seems so grave, Carnivore should be allowed to go forward. But new rules are going to have to be put in place quickly to ensure that it isn't abused. One good idea: having an independent legal authority, perhaps a judge, periodically audit the data cops collect to make sure that innocent people aren't being illicitly tracked.

Several other tough issues also lie ahead, including such proposals as a national I.D. card and biometric profiling--an emerging technology that lets law enforcers develop a database of people's faces, fingerprints, or the unique patterns of their eyes. These steps may well be necessary. But let's not rush into them blindly.

By Mike France and Heather Green

With Jim Kerstetter in San Mateo, Calif., and Dan Carney in Washington

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