Civil Liberties, Privacy, + Security
"If privacy is an essential component of personhood, how is personhood compromised by the information age, surveillance technologies, and other potential invasions of privacy? Similarly, what constitutes sufficient justification for the invasion of privacy by government, private individuals, or business entities? Lastly, for the purposes of constructing policy, how should policy reflect the appropriate balance in protecting privacy?" - Lisa Nelson in "Privacy and Technology: Reconsidering a Crucial Public Policy Debate in the Post-Sept. 11 Era"
Denver Attorney H. Bryan Cunningham divides privacy issues into two buckets or baskets: (1) the relationship of citizens to its government and (2) the relationship of citizens to everyone else such as marketers, big banks, computer companies, etc. The United States and European Union view these two categories "diametrically opposite" of each other, he said.
For example, British police have the authority to arrest and to hold suspects for up to 28 days without charging them with a crime; whereas, American police can only hold suspects for up to 48 hours, he said.
"In the United States, we have a lot of laws and regulations to protect citizens from their government," said the former deputy legal adviser to former President Bush and former Secretary of State Condoleezza Rice. "There are very few laws to protect citizens from the private sector. In Europe, they have a much more developed and coherent privacy directive, but it is explicitly not applicable to their government.
"So you hear the Europeans complain about the United States' 'privacy and civil liberties,' when in reality, their governments are much more free to spy on their citizens than ours and the accountability of those governments is much less than ours."
The National Security Agency's (NSA) eavesdropping program is less relevant to students than other groups because the chance that any student is going to be communicating with an international terrorist is slim to none, he said. The chances increase slightly for faculty members conducting research with foreign contacts and who may unknowingly be associated with a terrorist organization, he said.
Cathryn L. Hazouri, former executive director of ACLU-Colorado, said that the NSA is collecting not only the phone numbers dialed and received on cell phones and landlines, but it is also listening in on conversations of law-abiding citizens. "This has particular impact for students and faculty in that it causes people to be more reticent about what they will discuss on the phone or send in an e-mail," she said.
The private sector is by far deeper into data mining than the U.S. government - big corporations track what you buy, where you go, where you shop, what Websites you visit, and where you travel, so they can more effectively target their marketing towards individual consumers, Cunningham said.
Another set of issues involves how much the government can "follow your thoughts around," he said. Can they get your library records? Can they get your Amazon.com records? Can they get your phone call toll records - not what you say on the phone, but who you talk to?
"That bleeds into data mining," he said. "How acceptable is it for the government to use very large computer [databases] to track patterns that the government thinks indicate potential terrorist activity and to surveil people because of patterns, not because of any specific potential crime?"
FISA Court - Burden or Safeguard?
Former President Bush has acknowledged that the NSA wiretapping program is inconsistent with the Foreign Intelligence Surveillance Act (FISA), he said. As a result, the president's critics may say that, once he freely admits this, then he has confessed to breaking the law and to acting as a criminal, he said.
"Unlike in 1978, FISA now makes it impossible-not inconvenient, not expensive, but impossible-for the president to carry out his constitutional duties to protect the United States from another terrorist attack," Cunningham said. "It's the statute and not the presidential actions that are unconstitutional."
The fundamental problem with FISA is that it still requires you to obtain either a court order or written determination - in advance - from the U.S. Attorney General (AG) that, if you went to court, then you could get an order, he said.
Many critics cite the 72-hour emergency provision, which allows you three days before you are required to get a court order, but you have to go and do all the research and write all the documents and get them all to the attorney general for his personal approval, he said.
"Until the attorney general personally approves the wiretap, the NSA cannot listen to a word of conversation," he said. "Meaning, if a terrorist makes a call into the United States and says: 'The attack is about to happen. Go set up the nuclear weapons.' Under FISA, you will never be able to intercept that call because you can't get to the attorney general fast enough to get that approval."
According to "No Checks, No Balances: Discarding Bedrock Constitutional Principles" by Stephen J. Schulhofer, The Patriot Act gives prosecutors - for the first time - the ability to use broad FISA powers when their primary objective is not preventative, but it is to gather evidence for criminal prosecution.
Moreover, FISA does not require that the person targeted be a foreign spy or an international terrorist. Foreign nationals and U.S. citizens qualify as "foreign agents" subject to clandestine searches and broad FISA surveillance when they are merely suspected of having ties to foreign organizations and governments, and even when they are merely employed by various legitimate foreign organizations.
According to Hazouri, Department of Justice and law enforcement officials can currently go to the FISA Court and request a warrant or subpoena to obtain a specific person's records or to search a specific person's apartment or house.
But the government wants to get quantitative data on unnamed people, on groups of people, on large numbers of people, she said. As a result, those officials know that the FISA Court will not grant blanket subpoenas, so that's why circumventive action occurs, she said.
"If they abide by the law, they can get all of the information they want in a very short period of time on any person that they reasonably suspect has ties to terrorism," she said. "But this way, they are sucking up information like a vacuum cleaner on untold numbers of people. That's not right. That goes too far."
Worst Case Scenario
If the United States is truly engaged in a global war on terror, then it logically follows that the most important civil liberty is the "right not to be killed," Cunningham said. And as Justice Jackson once remarked, the Bill of Rights is not a suicide pace and if we fail to take actions to prevent major attacks, then civil liberties will ultimately be worse off in the long run, he said.
During the past 30 years, the reason that the executive branch has been reluctant to share classified information with Congress is because that information has often been leaked for partisan purposes and political gain, he said. If Congress wants a bigger share of the oversight role, then elected officials need to learn to protect those secrets, he said.
"If the next attack kills 300,000 people instead of 3,000, you haven't even begun to see our civil liberties erode," he said. "You'll see 535 members of Congress go to the President and say: 'Please declare martial law.' That's when you're going to see real damage to civil liberties."
We Can Be "Safe and Free"
Hazouri poses an interesting question: If Former President George Bush says that the terrorists hate us because we are free, then why should American citizens give up or concede those rights and freedoms to the enemy? While the Bush Administration preaches to ordinary citizens to sacrifice some freedom in exchange for increased safety, the ACLU believes that Americans can be both free and safe, she said.
"Giving up our rights doesn't make us safe," she said. "What it does is make us not Americans. The U.S. Constitution and the Bill of Rights make us stand out from the rest of the world. I don't know of any other country that has the rights and freedoms that we have. That's what makes us a better country.
"If we throw those out because we are afraid, then what are we? If martial law is declared, are we willing to have everything in our lives regulated because someone out there hates us? I think that we would become a timid, fearful, and less empowered people."