Homeland Sercurity & Privacy
Striking a Delicate Balance
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Oversight
Legislation such as the Patriot Act—and a new approach to privacy in general that emphasizes effectiveness of proposed intrusive security measures, considers nonintrusive alternatives and builds in privacy safeguards—will work only if we strengthen a crucial element that has been neglected, even after September 11th, in our approach to both security and privacy: we need a much more vigorous oversight system to ensure that our new security measures are indeed protecting us and are not being abused.

At least some of the privacy concerns raised by recent legislation and policy changes that give more surveillance power to federal law enforcement can be addressed by rigorous oversight. The FBI has eased restrictions on agents’ ability to surf the web and attend certain political and religious gatherings in the course of an investigation. Both seem like reasonable measures, but restrictions were put on these activities because of past egregious abuse, such as the FBI’s notorious COINTELPRO program, which went on for years. (In the early 1970s,

COINTELPRO was exposed as a domestic counterintelligence program run by the FBI and aimed at a broad range of activist groups; the methods COINTELPRO agents employed went far beyond surveillance, including the use of force and fraud, and abused numerous constitutionally protected rights.) So, if after September 11th, we want law enforcement again to have more surveillance power, let’s also understand how important it is to keep a better eye on them this time.

In regard to the Patriot Act, by 2005, law enforcement officials should demonstrate that the new surveillance powers are working, are not being abused, are still necessary, and are still the least intrusive means of getting the job done. Lawmakers should be willing to revise, rescind or overhaul the law as necessary. If handled properly, the Patriot Act and FBI policy changes may show us that, in some instances, the best way to strike the balance between privacy and security is not in refusing to allow more surveillance, but in insisting on more oversight. There may be times when our best protection is not to decrease the government’s ability to see us, but to increase our ability to see them. And to demand accountability.

Congressional oversight is part of the proposed new homeland security plan, of course, but it cannot be the hodgepodge of committees and subcommittees (88 by one count) that now oversee pieces of homeland security. It is not just the homeland security infrastructure, but also the oversight apparatus that needs an overhaul, including procedures to safeguard sensitive information while affording proper review. Some have also suggested strengthening the inspectors general who currently investigate federal agencies and removing them from the departments they are charged with overseeing. Still others propose an independent committee made up of experts in the field who would gain proper security clearances and oversee certain aspects of the homeland security program. The ultimate answer will likely be a combination of all these possibilities.

Long-Term Consequences
Finally, we have to better understand the long-term consequences of relinquishing some of our privacy in any given situation. In this we have failed as often as our elected officials. The loss of privacy appears simple enough—it manifests itself in how a naked image of ourselves may be examined, how what we do in public may be captured on videotape, or how our e-mail may be read at random. Yet even these intrusions may be only the beginning. Historically, new security measures never turn out to be temporary. Nor do they stay where they are put. They creep out, multiply and procreate, slowly insinuating themselves into other areas of our lives well beyond the original public safety concern. They gradually change our behavior, our idea of what we should be able to keep to ourselves and even our laws.

Consider drug testing. Just a generation ago it was unthinkable that we would urinate upon command with a monitor outside the stall listening and waiting to send the sample for testing. Random drug tests first reached the Supreme Court as a public safety measure involving railway workers. Though still repugnant in other areas, drug testing began to make sense for those in safety-sensitive jobs such as train engineers, airline pilots and workers at nuclear reactors. Then such testing began to spread to other jobs only tangentially related to public safety, and finally into the private sector where employers now routinely require urine samples from prospective corporate employees justifying the demand on the basis of productivity and profit concerns, not security.

In schools, the process was similar. The Supreme Court first upheld random drug testing for students who wanted to play sports in a school with a proven drug problem, where athletes were the leaders of the “drug culture.” With that license, other schools began random drug testing of all students who wanted to participate in any extracurricular activity. One Oklahoma school with no known drug problem required a urine sample from participants in the future homemakers club, band and choir. This past June, the Supreme Court upheld that program too.

The proliferation of video cameras has been more subtle and extensive. Their use in public also began as a public safety measure, first appearing in likely robbery targets such as banks and convenience stores. We barely noticed when the devices—renamed security cameras—began creeping into other stores, lobbies, elevators, restaurants, malls and out into the streets. (Even before September 11th, there were more than 2,400 video cameras trained on the streets of New York City). Then, in many instances the cameras were networked, grouped together to form a comprehensive surveillance system in which multiple scenes could be funneled into one command center. The National Parks Service recently announced plans to install such a closed-circuit television system at the Washington Monument and the Lincoln, Jefferson, Roosevelt, Vietnam and Korean War Memorials in the nation’s capital.

It is crucial to understand that in accepting these security measures bit by bit, we are not only changing our behavior and our idea of what we can keep private, we are also changing the laws that legitimize these intrusions. Most of the security measures proposed in the past year (for example, airport searches, wiretaps, e-mail intercepts, video surveillance and the BodySearch system) will be governed by the Fourth Amendment, which prohibits “unreasonable searches and seizures.” The Supreme Court has declared that the Fourth Amendment protects Americans’ “reasonable expectation of privacy.” To decide what we can reasonably expect to keep private, courts do not look to an objective standard of what should be private in a free society; among other things, they look to us. (In a recent example of how changing social mores can influence law, this past summer the Supreme Court banned executions of the mentally retarded, citing a growing national consensus against such acts.) If the government intrudes on us in a certain way and we go along with it, that is a good indication that we do not consider that area of our lives private. The more we accept, the less we can expect, as a practical matter and as a matter of law.

Striking a Balance
The new mantra is that “everything has changed”; if that’s true, then the changes must include the way we strike the balance between privacy and security. September 11th stripped the emperor’s clothes from our national security apparatus and revealed terrible failings in the way we protect our country. We are now overhauling our whole approach to homeland security. We should do the same for our equally flawed approach to protecting privacy.

It was the expectation of our founding fathers that we would always find ways to balance our civil liberties and the nation’s security without abandoning either. We can do much better in protecting both our homeland and our privacy, and in finding the right balance. If we do not, it is a failure, not of our constitutional system, but of the collective will of the people and of our imagination.

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