Protecting What Matters: Technology, Security, and Liberty since 9/11
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Protecting What Matters: Technology, Security, and Liberty since 9/11
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Product Details
| ISBN-13: | 9780815761259 |
|---|---|
| Publisher: | Rowman & Littlefield Publishers, Inc. |
| Publication date: | 03/29/2006 |
| Edition description: | New Edition |
| Pages: | 230 |
| Product dimensions: | 6.00(w) x 9.00(h) x (d) |
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Protecting What Matters
Technology, Security, and Liberty since 9/11Brookings Institution Press
Copyright © 2006 Brookings Institution Press and the Computer Ethics InstituteAll right reserved.
ISBN: 0-8157-6125-2
Chapter One
Providing Security and Protecting LibertyCLAYTON NORTHOUSE
On November 9, 2002, readers of the New York Times learned that Pentagon researchers planned to develop a massive virtual database, potentially containing data on every American, that could provide "instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents." Known as Total Information Awareness (TIA), the program originated in the Defense Department's Information Awareness Office, which was set up after September 11 to help develop predictive technologies that could aid the government in preventing future attacks. TIA planners hoped to exploit the vast amount of electronic information stored in commercial and governmental databases to find and track terrorists. Their goal was to develop analytical tools that would search through these mountains of data and generate an electronic profile of likely terrorists. Taken together, these tools and the databases to which they were applied could provide the government with an all-seeing eye on the world. In fact, TIA's logo was the all-seeing eye found on the U.S. dollar bill, and its motto was"scientia est potentia" (knowledge is power).
News of TIA unleashed a firestorm of protest, not only among left-leaning civil libertarians but also on the right. A few days after news of TIA broke, William Safire used his Times column to warn:
Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend-all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database."
To this computerized dossier on your private life from commercial sources, add every piece of information the government has about you-passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the hidden camera surveillance-and you have the supersnoop's dream: a "Total Information Awareness" about every American citizen.
Other analysts came to TIA's defense, arguing that the new security challenges facing the United States demanded a new type of response. Since the end of the cold war, nonstate actors had replaced foreign governments as the major threats to U.S. national security. In order to track and defeat enemy combatants in decentralized networks spanning the globe, the intelligence community had to collect more data than ever before and draw links between seemingly innocuous bits of information. "It is the only way to protect ourselves," explained former CIA official John MacGaffin. "For the last forty years, there were a finite number of bad guys coming out of a finite number of places. Now we have an infinite number of threats from an infinite number of things."
Tools such as Total Information Awareness, advocates maintained, were critical to this task. In addition, they argued, concerns about civil liberties could be addressed by ensuring that privacy safeguards were in place. A combination of judicial oversight and modern technologies, such as anonymity tools, could allow the government to fight the war on terror without infringing unduly on ordinary citizens' rights.
The public and Congress were not convinced. For many, TIA's Big Brother overtones were too difficult to ignore. And the fact that the Information Awareness Office was headed by retired rear admiral John M. Poindexter, who was convicted of lying to Congress about the Iran-Contra affair, did little to allay their concerns. In May 2003 the Defense Department responded to TIA's critics by releasing a detailed report, as required by Congress, that pledged to make the protection of Americans' privacy and civil liberties a "central element" of the program. It also announced that henceforth TIA would be known as Terrorist Information Awareness rather than Total Information Awareness. But the critics were unappeased. Even Poindexter's resignation later that summer-following a new flap over plans to launch a terrorism futures trading market-failed to quell opposition to the programs he had helped create. In September 2003 Congress cut off funding for TIA and shut down the Information Awareness Office.
This case illustrates the controversy provoked by ambitious efforts to harness information technology to the cause of homeland defense. It also raises a number of questions that will remain vital long after this particular program's demise: What principles should guide us in negotiating the relationship between security and liberty in the aftermath of September 11? How does technology factor into this complex set of concerns? What benefits do techniques like data mining offer, and how should they be used? To what extent are we willing to give the government control over our personal information? Do current efforts to exploit information and information technology violate the principles embodied in the Fourth Amendment?
The contributors to this volume address these critical questions. In the next essay in this section, Alan Westin examines public opinion data to identify the broad contours of the current debate over security, liberty, and technology. In the second section, "Protecting Security and Liberty: Information Technology's Role," James Steinberg, Zoë Baird, James Barksdale, Gilman Louie, Gayle von Eckartsberg, and Bruce Berkowitz analyze the necessary restructuring of the intelligence community and the role that technology can play in combating terrorism. They also suggest how technology can be used to protect the homeland without necessarily threatening civil liberties. Finally, in the third section, "Technology, Security, and Liberty: The Legal Framework," Larry Thompson, Jerry Berman, Beryl Howell, Senator Jon Kyl, and Senator Russell Feingold focus on key legal issues at the intersection of liberty and security and continue the debate over the proper legal restrictions on the government's power to use information technologies for national security purposes.
Security and Liberty: The Fundamental Debate
American history is, to a great extent, a study of the tension between liberty and security. The Founders' desire to protect what they saw as inalienable rights, including liberty of thought, association, and speech and freedom from unwarranted government incursions into citizens' homes, is enshrined in the Bill of Rights. Yet over the more than two hundred years since the Constitution was ratified, these basic liberties have been compromised repeatedly during periods of national uncertainty.
In 1798, with the nation prepared for war, President John Adams and the Federalists passed the Alien and Sedition Acts, which made any "false, scandalous, and malicious" statement against the United States government punishable by fine and imprisonment. In addition, they gave the president the exclusive authority to deport any foreigner considered to be a threat to national security. At a time of rising tensions with France, the Federalists argued that these measures were necessary to preserve order and protect the nation. But in practice, they were used primarily to muzzle the opposition Republican Party. Nearly all of the newspaper writers and editors arrested under the Alien and Sedition Acts were Republicans. The acts expired on the last day of Adams's presidency, and his successor, Thomas Jefferson, released and pardoned all those jailed as a result of this legislation. The Alien and Sedition Acts have since become a black mark in the history of free speech in America and the subject of condemnation by the Supreme Court.
Some sixty years later, in the midst of the Civil War, President Lincoln faced opposition to Union forces in Baltimore. When rioting broke out among Confederate sympathizers, resulting in the death of several Union soldiers, Lincoln suspended the writ of habeas corpus, which gives detained individuals the right to have their case heard before a judge, and declared the entire state of Maryland under martial law. Throughout the war, Lincoln suspended the writ of habeas corpus eight times, finally issuing a nationwide order. As a result, thousands of supposed Southern sympathizers, draft dodgers, and deserters were detained without access to a civilian court of law. After the end of the Civil War, the Supreme Court condemned these actions, ruling in Ex Parte Milligan that it was unconstitutional to detain a U.S. citizen under martial law without access to functioning civilian courts.
The next major challenge to Americans' civil liberties came during World War I. With the Espionage Act of 1917 and the Sedition Act of 1918, the United States returned to many of the practices authorized under the Alien and Sedition Acts. In the first of what would become two Red Scares, thousands of individuals were arrested for speaking out against the war and for criticizing the United States government. At the time the Supreme Court upheld a number of decisions involving the detention of individuals who had opposed the war, but all of these decisions were subsequently overturned, and every individual arrested under the Espionage and Sedition Acts was eventually released.
Later, during World War II, widespread panic up and down the West Coast led to the internment of 120,000 people of Japanese descent. Under tremendous political pressure, President Roosevelt issued Executive Order 9066 ten weeks after the attack on Pearl Harbor. This order gave the Army the power to establish military zones from which certain individuals could be excluded. Ninety percent of Japanese Americans were uprooted from their communities, forced to leave their homes and businesses, and relocated to internment camps in which they remained for up to three years. In Korematsu v. United States, which was decided in 1944, the Supreme Court upheld this policy. Writing for the majority, Justice Hugo Black stated that "the power to protect must be commensurate with the threatened danger." Since then, several presidents have apologized for the forced internment of the Japanese, and the Supreme Court has never relied on Korematsu as a precedent in deciding later cases.
Perhaps most famously, at the height of the cold war, the Red Scare of the 1950s involved the blacklisting of hundreds of supposed Communist sympathizers and the incarceration of Communist Party leaders. The House Un-American Activities Committee blacklisted hundreds of artists and writers, and under the Smith Act, members of the Communist Party were prosecuted for conspiring to overthrow the U.S. government. In Dennis v. United States, the Supreme Court affirmed the constitutionality of the Smith Act and upheld the conviction of Eugene Dennis and ten other Communist Party leaders, declaring their speech to pose a clear and present danger. In a strong dissenting opinion, Justice Black observed, "Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society." Eventually, the Court vindicated Black's hopes and brought the second Red Scare to an end by restricting the scope of the Smith Act and prohibiting Congress from investigating people's political beliefs.
As these examples demonstrate, the issues raised by the sometimes conflicting demands of security and liberty are not new. But today the controversy surrounding the relationship between these two goals is heightened by the advent of powerful and, to some, frightening new technologies. Cameras can now record the geometric structure of a subject's face and instantly compare those measurements against data on suspected criminals. Giant databases can store information on every credit card transaction, medical record, bank account, and plane reservation. Analysts can perform clandestine searches of the data stored on individuals' computers and collect data transmitted over the Internet, including the addresses to which e-mail is sent and the websites that a user has visited. In some eyes these capabilities evoke the Orwellian nightmare of a paternalistic, omnipotent government that observes its citizens' every move.
How will the government respond to the civil liberties challenges that these new technologies raise? In large part the answer to this question lies in public beliefs about how the balance between security and liberty should be struck. As Learned Hand said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." Accordingly, in the following essay, Alan Westin offers a detailed examination of the public's attitudes toward civil liberties and national security before and after September 11. Based on the results of five surveys conducted since the September 11 attacks, he finds that large majorities both support the government's expanded powers and remain concerned about safeguarding civil liberties. This attitude of "rational ambivalence," he concludes, should be seen as an opportunity to ensure that both support for antiterrorist programs and protections for civil liberties remain strong.
Protecting Security and Liberty: Information Technology's Role
The second section of Protecting What Matters focuses on the intelligence challenges posed by terrorism and the role that information technology can play in this new threat environment. During the cold war, as James Steinberg points out, the task facing the intelligence community was relatively straightforward: "We generally knew what to look for and where to look for it." Moreover, most of the necessary information concerned military activities overseas, and the expertise needed to collect and analyze it resided in the federal government. Since September 11 all that has changed. In his essay Steinberg discusses how the intelligence community must adapt to meet future security challenges. He also identifies new technologies that can aid in this task, as well as tools that can promote accountability in the collection and use of sensitive personal information.
Zoë Baird and James Barksdale, cochairs of the Markle Task Force on National Security, focus on one of the most important aspects of the new intelligence challenge: the need to improve information sharing across different agencies and levels of government. Based on the task force's work, they outline six criteria that an effective Systemwide Homeland Analysis and Resource Exchange (SHARE) network must meet and analyze the proposed network's technological components. They also review recent policy developments-notably the executive orders issued by President Bush in August 2004 and the Intelligence Reform and Terrorism Prevention Act of 2004-that create a national framework for better information sharing and, ultimately, greater security.
Gilman Louie and Gayle von Eckartsberg also explore information technology's role in the post-September 11 world, but their emphasis is on tools that make it possible to protect civil liberties and the nation at the same time. For example, selective revelation and anonymizing technologies can limit violations of privacy while granting the government access to a great deal of useful information. The availability of such techniques, Louie and von Eckartsberg argue, makes security-versus-liberty a false choice.
Finally, Bruce Berkowitz looks beyond specific technologies to delineate the role of policies and procedures in creating a safe zone for collecting and sharing information while protecting civil liberties. "Since September 11," he writes, "the main approach to resolving these problems has been to 'lower the bar'-that is, reduce the barriers that preclude intelligence and law enforcement agencies from investigating individuals and sharing information." Instead, he argues, the government should "adopt measures that limit the potential damage of such investigations." By limiting the mandate of information collectors, controlling the use of information, and providing recourse for the subjects of mistaken investigations, the intelligence community can more effectively take advantage of technology's potential without unduly infringing upon individual rights.
(Continues...)
Excerpted from Protecting What Matters Copyright © 2006 by Brookings Institution Press and the Computer Ethics Institute . Excerpted by permission.
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Table of Contents
Foreword-by Ramon Barquin and Jane FishkinAcknowledgments
PART I. Introduction: Security and Liberty in the Twenty-first Century
1. Providing Security and Protecting Liberty-by Clayton Northouse
2. How the Public Sees the Security-versus-Liberty Debate-by Alan F. Westin
PART II. Protecting Security and Liberty: Information Technology's Role
3. Information Technology and the New Security Challenges-by James Steinberg
4. Building a Trusted Information-Sharing Environment-by Zoe Baird and James Barksdale
5. Security and Liberty: How Technology Can Bridge the Divide-by Gilman Louie and Gayle von Eckartsberg
6. Policies and Procedures for Protecting Security and Liberty-by Bruce Berkowitz
PART III. Technology, Security and Liberty: The Legal Framework
7. Communications Assistance for Law Enforcement Act: Facing the Challenge of New Technologies
8. Security, Privacy, and Government Access to Commercial Data-by Jerry Berman
9. Foreign Intelligence Surveillance Act: Has the Solution Become a Problem?--by Beryl A. Howell
10. Why You Should Like the PATRIOT Act-by Jon Kyl
11. Why I Oppose the PATRIOT Act-by Russ Feingold
Liberty and Security Timeline
Further Resources
Contributors
Index