Wednesday, June 8, 2011

Why Security Keeps Steam Rolling Privacy Concerns

I wanted to alert readers to an excellent article in by a Daniel Solove regarding why the security argument keeps winning out over the privacy one - to the detriment to our freedom and civil liberties.

Certainly, last weeks extension of the Patriot Act - with next to no debate or critically needed reforms to protect privacy - is a stark example of this security versus privacy clash. Remember, it wasn't long ago that the American public, and certainly the majority of congressional Democrats would have been rightly outraged by Patriot Act provisions that allow for broad warrants to be issued by a secretive court for any type of record, without the government having to declare that the information sought is connected to a terrorism investigation; or that allow a secret court to issue warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist; and of course, that allow the government to search your home as long as it doesn't tell you it did.

But that was then, this is now. Granted, during the Bush years there was at least some resistance in Congress to the Act, and at least some attention was given to the numerous, and continuous government abuses of the law. As the years have passed however, and a Democrat now sits in the White House, that resistance has largely evaporated, particularly with the last elections defeat of privacy champion Russ Feingold.

Again, as I have written in response to past Patriot Act extensions: An undeniable pattern has emerged over the past few years that fundamentally challenges the entire premise of a "war on terror" and exposes just how ineffectual and counterproductive these policies have actually been. The reoccurring theme goes like this: Powerful interests - inside and outside of government - sell fear as a way to justify the steady assault on our civil liberties, increased spending on military defense, and the growth of the surveillance state.

But here's another important piece of the puzzle that keeps popping up: more often than not the government HASN'T USED these expanded powers to actually fight terrorism (instead often to thwart anti-war protesters, bust small time drug dealers, monitor journalists, and who knows what else?) - as was promised. This begs a larger question, "Who has been targeted and why?"Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)?

With that, let's get to some key passages (he lays out 5 reasons we're losing this fight) of Solove's article entitled "Why "security" keeps winning out privacy". Here's some key passages:

Far too often, debates about privacy and security begin with privacy proponents pointing to invasive government surveillance, such as GPS tracking, the National Security Agency surveillance program, data mining, and public video camera systems. Security proponents then chime in with a cadre of arguments about how these security measures are essential to law enforcement and national security. When the balancing is done, the security side often wins, and security measures go forward with little to no privacy protections.
But the victory for security is one often achieved unfairly. The debate is being skewed by several flawed pro-security arguments. These arguments improperly tip the scales to the security side of the balance. Let’s analyze some of these arguments, the reasons they are flawed, and the pernicious effects they have.

The All-or-Nothing Fallacy
Many people contend that "we must give up some of our privacy in order to be more secure." In polls, people are asked whether the government should conduct surveillance if it will help in catching terrorists. Many people readily say yes.

But this is the wrong question and the wrong way to balance privacy against security. Rarely does protecting privacy involve totally banning a security measure. It’s not all or nothing. Instead, protecting privacy typically means that government surveillance must be subjected to judicial oversight and that the government must justify the need to engage in surveillance. Even a search of our homes is permitted if law enforcement officials obtain a warrant and probable cause. We shouldn’t ask: "Do you want the government to engage in surveillance?" Instead, we should ask: "Do you want the government to engage in surveillance without a warrant or probable cause?"


The Deference Argument
Many security proponents argue that courts should defer to the executive branch when it comes to evaluating security measures. In cases where Fourth Amendment rights are pitted against government searches and surveillance, courts often refuse to second-guess the judgment of the government officials. The problem with doing this is that, unless the effectiveness of the security measures is explored, they will win out every time. All the government has to do is mention "terrorism," and whatever it proposes to do in response -- whether wise or not -- remains unquestioned.


The Pendulum Argument
In times of crisis, many security proponents claim that we must swing the pendulum toward greater security. "Don’t be alarmed," they say. "In peacetime, the pendulum will swing back to privacy and liberty." The problem with this argument is that it has things exactly backward. During times of crisis, the temptation to make unnecessary sacrifices of privacy and liberty in the name of security is exceedingly high.


The War-Powers Argument
After Sept. 11, the Bush administration authorized the National Security Agency to engage in warrantless wiretapping of the phone calls of Americans. Headquartered in Maryland, the NSA is the world’s largest top-secret spy organization. The NSA surveillance program violated the Foreign Intelligence Surveillance Act (FISA), a federal law that required courts to authorize the kind of wiretapping the NSA engaged in. that it was acting legally under FISA. Instead, it argued that the president had the right to break the law because of the "inherent constitutional authority" of the president to wage war.


The Luddite Argument
Government officials love new technology, especially new security technologies like biometric identification and the "naked scanners" at the airport. The security industry lobbies nervous government officials by showing them a dazzling new technology and gets them to buy it. Often, these technologies are not fully mature. Security proponents defend the use of these technologies by arguing that privacy proponents are Luddites who are afraid of new technology. But this argument is grossly unfair.


These are just a few of the flawed arguments that have shaped the privacy/security debate. There are many others, such as the argument made by people who say they have "nothing to hide." We can’t have a meaningful balance between privacy and security unless we improve the way we debate the issue. We must confront and weed out the flawed arguments that have been improperly skewing the conversation.
All in all an excellent the rest here.

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