Libertarianism and Privacy in the Age of Terror
Sun March 9th, 2003 15:16 MSTMankind has entered a New and Dangerous Era.
For the first time in the existence of man, small groups of terrorists or anonymous agents of a hostile government can unleash massive disasters. These would kill many thousands to millions of people with chemical, nuclear or biological weapons, and cause enormous economic damage. In the worst case of a genetically engineered biological weapon, most of mankind would be wiped out.
This new era means our premises about society and government are now suspect. The old rules may not work any more. Many will, some won’t. Some axioms must now be turned into hypotheses and re-examined - we can no longer be sure about many things we have taken for granted.
This is a dramatic change that has barely begun to penetrate our consciousness and debate.
Parapundit has written an essay discussing the issue of individual rights in various value systems, especially from the standpoint of Libertarians. It also points out how absolute or utopian Libertarianism is as irrational as idealistic communism.
This article discusses a related issue: The issue of privacy rights in the Age of Terror.
One of the most fundamental tensions in Libertarianism (and modern Conservativism) is the conflict between the desire to minimizie government and the need to maintain those governmental functions which allow liberty to exist at all. Too many view the existing government as the only threat to liberty, when in fact the ultimate loss of liberty is premature death by violence, which today can be by terrorists using weapons of mass destruction.
The most critical function of government is the protection of its citizens. For the United States, this has never been more clear than post 9-11. It will probably be necessary to increase surveillance on citizens and others to protect against future, worse terrorist acts. Furthermore, future even more terrible terrorist acts may cause a rush to enact such a state. Thus the thinking and argument about how to implement such a state with minimal damage to democracy must start now!
So, the related libertarian axioms that must become suspect hypotheses are:
- (extended privacy) is a fundamental right, and
- government surveillance is not necessary, and will inevitably lead to oppression.
Today, most libertarians on the net reflexively attack any government measures which increase surveillance of citizens or even non-citizens. As an example, note the constant Ashcroft bashing and the inflamed responses to the non-existent Patriot Act II.
The advent of terrorists armed with weapons of mass destruction has changed the fundamental nature of what rules are now possible in a free society.
The freedom which is most strongly protected and the most often threatened, ironically, is not even named in the Constitution: privacy. There are limited privacy rights in the Fourth Amendment, but in modern times vastly more privacy rights have been conjured forth.
A Surveillance State may be Necessary
It may very well be necessary for the government to gather information on many or all public transactions, including shopping, library and book purchase activities, internet activity, telephone calling data and travel; to run such information past pattern recognition algorithms; and, in suspicious cases to analyze information on specific individuals.
There should be no fundamental constitutional prohibition of such activity: it does not allow the government into one’s house, physically or electronically; it does not outlaw free speech of any kind.
Furthermore, most of this information is already available to commercial entities. It seems short-sighted, in this Age of Terror, to allow companies to gather such information while prohibiting government security agencies from using that same information, with adequate protections.
This Information is Dangerous!
It is important that a debate be started over how to manage a surveillance state to maximally protect the rights of citizens. Interested parties, including those who oppose these measures, must discuss how to prevent abuses of such information. Even if the objectors lose many arguments, their contributions will be important in minimizing the damage of the resultant loss of privacy.
The primary objection to governments acquiring too much information about individuals is non-intended uses, or the slippery slope approach of later extending the allowable uses.
For example, the handgun purchase database was required by law to exist only to vet hand-gun purchasers, and for no other purpose. The FBI illegally maintained data beyond the statutory time limits, and now we see local police agencies seeking to use the information to find handgun possession violators. This is an example of an abuse, for seemingly good motives, of private information. Fortunately, the Republican attorney general is preventing the illegal use of this data, but under a Democrat administration this would not have been the case.
Measures are needed to prevent this kind of abuse - especially as additional information is gathered. The most dangerous kind of abuse, which must be prevented by the strongest means, is the use of the information for political oppression. This is the one case where the Surveillance State can actually threaten the freedoms of citizens and the political continuance of a rights-respecting democracy. Other abuses would include corruption, for example where officials with access to the information used it for extortion or sold it to private entities.
Such situations must be prevented. Review boards such as the existing FISA courts seem to work and may be adequate mechanisms, but others might be appropriate. This is an area where a lot of thinking by smart and experienced people is needed, because the Surveillance State is a probability in the United States.
It is critical that the privacy advocates now start to address how to mitigate the damage of a Surveillance State, rather than simply trying to oppose it.
Summary
The Age of Terrorism is here. The first role of government is to protect its citizens from death or serious harm - from fellow citizens or foreigners. Modern weapons mean that small groups have the capability of inflicting very large numbers of deaths and massing economic government. The government needs more information in order to help prevent this, and the rights community needs to address not only the advisability of gathering information but also the way to do it in a way that maximally protects the rights of citizens.
<b>UPDATE 11-23-2008</b> Arizona now collects a database of auto license plates passing various sensors.
Where are these terrorists with WMD who we have seen the advent of? Talk about a strawman argument. In essense your position seems to be ‘just trust the surveillance state’.
No.
I’d rather throw bricks at it.
Nope. My argument is this:
1) There exist terrorists (Islamists) who intend to either convert the west to extremist Islam or destroy us. They know that they cannot do the former without a whole lot of the latter. 9-11 simply demonstrated that they were willing to cause very large numbers of casualties (without a lot of luck, they would have killed tens of thousands in that attack).
2) There exist countries with deadly weapons that can be moved and deployed by very small groups. Examples include nuclear weapons in Korea and biological weapons almost everywhere you look (USSR had huge mounts and Russia still does, NK, Iran, Syria, Libya, Cuba hve them).
3) There exist terrorist with large amounts of money and owners of these WMD’s who want some of the money.
4) This situation will not change in the forseeable future. It is an inevitable result of the advances in science, technology and commerce combined with humans behaving as they always had.
QED: There will be attempts to deploy extremely devastating weapons by these terrorists against us, probably successfully.
Thus people will DEMAND a surveillance state.
Add to that the same technological trends enabling the creation widespread surveillnce, whether directly by the government or indirectly by individuals and businessmen for their own protection. Today it is estimated that the average American in a big city is recorded by camera 100 times per day.
THUS… I suggest that those who care about privacy at least contribute to the best way to create the benefits of this surveillance while minimizing the negaties.
Throwing bricks may be satisfyng, but totally misses the point!
A surveillance state makes the same mistake as airport screening. Much wasted energy & effort screening people, 99.999% or more of whom, are not terrorists. A surveillance state is a cure worse than the disease — killing freedom to save freedom. Before advocating a surveillance state, we might ask why has the U.S. not been the victim of multiple random bombings such as was seen in Europe 20 years ago, such as is seen in Israel and now Iraq? We’ve certainly had plenty of extremist nut-case groups running around. Perhaps our laws controlling access to explosives or other materials are adequate. More focused terroristsearch is what is needed — not massive amounts of data which are too voluminous to timely yield anything useful and much open to abuse.
Surveillance systems are very useful in backtracking, which is a critical intelligence function. They are also useful for proving innocence. And we are fighting terrorists right now in Iraq, with the military is using UAV’s for surveillance. We knew who the 9-11 hijackers were and what they looked like thanks to security cameras (part of widespread retro-active surveillance capabilities already in place).
However, as I mention in the article, it isn’t a matter of if, it is a matter of when we end up in surveillance state. When someone sets off a nuke in one of our cities, or otherwise kills a whole bunch of people, then we will end up with such a system. England already has a vast (if not well designed) surveillance system as a result of IRA bombings.
It is hard to prove negatives. You raise airport screening as if it is wasted. But it is likely that the increased level of screening has prevented attacks. Is it optimal? No, but these sorts of systems never are.
When a single failure of the system can cause thousands of deaths, screening millions to catch a dozen may be worth it.
Furthermore, I disagree that surveillance kills freedom. Surveillance misused can do that, but so can the police powers the government already has. But my freedom of travel has been damaged a lot more by terrorists than by my government.
I think the reason we have not had multiple random bombings hhere as been because the KGB didn’t train and support indigenous terrorists in the US like they did in Europe. Furthermore, simple geographic distance made it harder. Thus the terrorists we had running around were mostly not very bright conspiracy theorists rather than college educated, KGB assisted marxists.
I know our laws controlling access to explosives are not adequate. The Oklahoma City bombing showed that. You can make a large quantity of low velocity explosive from swimming pool supplies. You can make higher velocity explosives with nothing but oil and ammonium nitrate, and the latter is transported and sold by the ton. The first world trade center bombing and the Oklahoma City bombing were done using that explosive (ANFO). Here in Arizona, you can buy large quantities of mining explosives, including ANFO, just by having them shipped to your mine, and there are lots of old mines that can be had for a few thousand dollars. Furthermore, explosives are frequently stored at remote, unguarded mines where they can be easily stolen, and it happens frequently.
As far as more focused searches, the problem with that suggestion is that nobody ever provides a working way to do it. Certainly profiling is a start, especially if you can keep the algorithm secret. But gathering mass amounts of data is immensely useful because you can do focused searches on the past, which can allow you to tie together various investigative leads and discover real plots.
The technology doesn’t seem to exist to allow video surveillance to be particularly useful in real time (although eventually that will change). But for investigative purposes, it does. It is used all the time, which is why a lot of stores and banks have the systems in the first place.
Furthermore, a large number of people are convicted of crimes based on the testimony of unreliable eye-witnesses. Surveillance tapes, especially if appropriate watermarking technology were used, could exonerate innocent people by showing where they were or were not in that past. That is an increase in freedom, not a decrease.
Security is achieved by inserting multiple barriers. Otherwise finding the weak link in a single security system removes all security. The best security is to eliminate the enemy, either militarily or through suasion. But that won’t always work, and one needs backup systems. So you go to screening, border enforcement (if you can), identity cards (which, btw, would also get rid of a lot of identity theft if done right), surveillance, localized screens around high value targets, guards, alert citizenry, pro-active police/counter-intelligence work, physical barriers, etc.
John:
I think you’re serving an important function by raising this issue and discussing it here. I’m by no means opposed to surveillance cameras at all times and under all circumstances. But I do disagree with you on a few key points.
Large-scale screening of any kind runs the same statistical risks as, for example, random drug testing. If the target of the screening is a smaller proportion of those screened than the accuracy of the technique, you will have more false positives than true positives. In the case of terrorists as a proportion of airline passengers we’re talking about a fantastically small percentage, so the technology had better be very accurate indeed or we’re going to end up harassing and frightening huge numbers of people for every genuine terrorist we trap. And, if the terrorists are half clever, we may not trap them at all. I don’t know how many of the 9/11 terrorists had visas, but I’ll bet some of them did, and I’ll bet most of them could have got them. So what is currently being proposed wouldn’t have caught any of them.
Chief Hagness said this at a meeting of the Wisconsin State Fair committee when they were discussing security measures at the fair. The gist of his argument was that we have to be willing to tolerate some risk in a free society. If we are not, we no longer have a free society which means that, by definition, we have lost.
I agree with you that the consequences of a major terrorist attack are terrible, and justify stronger measures than we should otherwise be willing to accept. When the U.S. liberated Iraq from Saddam I used this very type of argument myself in partial justification of the war. So I do not disagree with you that strong measures are required in the war on terror and, as I stated on the Samizdata blog, I’m not opposed to measures that are reasonable and appropriate for the circumstances, such as the airport screening the U.S. government is proposing.
But I think you are far too sanguine about surveillance in general. We can no longer be a free, functioning democracy if we rely on the fear of being caught as the principle determinant of people’s behaviour. Democracy will only work so long as a sizable proportion of the citizenry behaves well even when they know that no one will see them, simply because they understand the importance of moral and ethical behaviour (and are capable of making reasonable moral and ethical choices). That means that we must be willing to accept the certainty that some people will make poor moral and ethical choices, and that others will become the victims of those choices. We must be willing to bear that, and to deal with some of the behaviours personally, directly, without the state’s help, or we can not be free.
We have to be willing to “fight for it when it is attacked” and not fall prey to “momentary discouragement, or temporary panic.” I suspect that where you and I differ is in what kinds of surveillance fall into which category.
I grant you that Mill would not have forseen the kinds of weapons that exist today, and perhaps not even the kind of evil that would use them against innocent civilians. I’m directing this quote at the more general case of surveillance against non-terrorist crime, and at the “temporary panic” that might cause us to give up more liberties than is warranted in the face of terrorism.
Tedd,
I understand well the problem of false positives. I was involved with biometrics at Visa some years back and the problem of false positives was very real.
We are going to be in a permanent state of terrorism as far into the future as I can imagine. We are going to have to learn, as a society, how to deal with false positives and the other negatives of increased scrutiny.
An important point is that it matters not whether we would choose these measures, becaues the democratic process will force them on us.
Your arguments about functioning Democracy are, respectfully, irrelevant to this particular issue. When small groups in a free democracy can kill very large numbers of people or cause dramatic disruptions in the economy, the theories about moral and ethical behavior fall flat. They are more appropriate when applied to criminal behavior than terroristic warfare.
In such a situation, surveillance is not designed to work in concert with a punishment system to deter terrorists, because the current crop don’t care. They are zealots, willing (even eager) to give their lives doing their evil. A side effect will be an improvement in crime fighting, and as I argued, I think that such systems will result in fewer, not more successful prosecutions of innocents.
Hence the purpose is to increase our ability to prevent terrorist actions, not proactively, but initially by backtracking them after an atrocity in order to use intelligence techniques, not police measures, to defeat them (methods such as information gathering, infiltration, agent doubling, etc).
In other words, your criticisms would be very powerful if we were dealing with criminality, but do not, in my opinion, apply to the world of now or the forseeable future.
I don’t imagine a “temporary panic” at terrorism. I imagine a continuous state of vigilance and warfare.
I also understand the potential for police agencies to use whatever they can to bypass procedural rules designed to preserve freedoms, and such abuses would occur here. But I think careful design could minimize that and actually lead to a positive result for all but criminals.
John:
I’m dismayed that you didn’t notice my attempts to make that very distinction. I was attempting to discuss two separate points of yours, one about the justifibility of the presently-proposed airport screening and the other about the justifiability of public surveillance cameras in general. I’m sorry if I conflated the two.
To clarify, I’m not opposed to stronger measrues being used to apprehend terrorists, particularly measures that take place outside, or on the border of, the country. Within the country, however, there are movements afoot to use surveillance cameras in public places to combat non-terrorist crime, and it was my perception that you were also arguing in favour of that. My comments regarding the sustainability of democracy were directed at that argument, not at your arguments regarding terrorism.
With respect, I think you’re being evasive here. What you mean is that we’re going to have to be willing to accept false positives and the other negatives of increased scrutiny. I have no doubt that you’re right, but we should be very careful about just exactly how much of it we are willing to accept.
This may well be one of the keys to our difference of opinion. I can certainly see that you’re not a wild-eyed radical, and you have clearly given the matter considerable thought, so I give weight to your opinions. I don’t yet feel, though, that this situation will extend as far into the future as I can imagine.
I realize there are differences, but I think back to the cold war era. The seriousness and the apparent permanence of the U.S.-Soviet relationship caused the U.S. to, in my opinion, take stronger measures in certain cases than was warranted. Reasonable people might disagree on which cases were warranted and which not, but the general point seems on fairly solid ground, to me. Then, in a flash (historically speaking), the situation changed radically. Islamofascism will, eventually, collapse in much the same way. I suspect that, now that the west is beginning to recognize it for the problem it is, and take steps to deal with it, it will collapse faster than the Soviet Union did. Not that there won’t still be adherents; after all, there are still Nazis. But they won’t be any more of a threat to us than present-day Nazis are. (By which I do not mean Ba’athist.) I understand that there are important differences. Sovietism was based on a nation-state, whereas Islamofascism is based on a religion, for one. And, while the Russians loved “their children too,” one has to question whether many Palestinians do, in the way we mean the phrase. But I believe the differences aren’t as important as the similarities.
Terrorist acts such as 9/11 and 3/11 require willing participants with a certain mind-set; they don’t happen only because of the availability of technology. Nothing that happened on 9/11 and 3/11 could not have happened thirty or probably even forty years ago, but it did not. I therefore conclude that it’s possible for even more destructive technologies to exist without their being used. We should focus our efforts on countering the forces that enable individual terrorists to justify killing innocents on a massive scale. That means dismantling, one way or another, the very cultures that spawn them. By that I mean the death cult of the Palestinians, anti-democratic and anti-western governments such as Ba’athists, and probably some of the more radical elements in our own societies that see these movements as comrades-in-arms. Don’t misunderstand me, I’m not in any way suggesting that we attempt to enforce any sort of belief system within our own countries. That would be pretty hypocritical of me! But those of us who understand that the Islamofascists aren’t friends of anybody in the west (except other Islamofascists) must consistently counter the arguments of those who don’t.
Is the first duty of a government to protect its citizens from physical harm or to protect their liberties? The former, clearly, but only on the assumption that it can be done without giving up the latter, or any more of it than is absolutely necessary.
Sadly, to our enemy this is total war. We have to accept that. That means women and children will die along with soldiers, as they did in Europe when we fought fascism. If we take the fight to them, as we did in Afghanistan and Iraq, we can minimize those losses on all sides. But we can’t eliminate them completely. The balancing act will be to give up only those freedoms that we must to re-establish relative peace, and try to ensure that we can regain all those we lost during the fight when we eventually succeed.