The Proposition's opening statement
Feb 5th 2008 | NEIL C. LIVINGSTONE
The great novelist John Steinbeck once observed, "We spend our time searching for security, and hate it when we get it."1
Thus is our conundrum in the wake of the 9/11 attacks on New York and Washington which traumatised this nation and many of our friends and allies around the globe.
Today we face unprecedented security risks to our lives and the fragile infrastructures we depend on to sustain our livelihoods and well-being. Our enemies are far more sophisticated than the stereotype of a bearded jihadist toting an AK-47 hunkered down in the mountains of Pakistan or Afghanistan, an illiterate and superstitious Luddite eager to impose the nostrums and doctrines of the 7th century on the modern world.In reality, many jihadists are technologically sophisticated and linked together by the Internet, which they use to download information on our vulnerabilities and assist them in the design and construction of explosive devices and even chemical, biological and radiological weapons. And, as a Senate Permanent Subcommittee on Investigations report directed by former Georgia Senator Sam Nunn concluded, "It is not a matter of 'if' but rather 'when' such an event [chem, bio, or nuclear] will occur."
In response to this very real and ongoing threat, the US government has taken a number of steps to monitor the activities, communications and movements of potential terrorists and other aggressors here and around the globe and to amass data, with the assistance of advanced information technologies, to authenticate and verify the identities of both citizens and non-citizens alike. The president has also signed a recent directive that expands federal oversight of internet traffic in an attempt to thwart potentially catastrophic attacks on the government's computer systems.
We live in information-based societies and it is inevitable that law enforcement and security forces will utilise these technologies in an effort to better protect us from malicious actors. In Britain, closed-circuit television (CCTV) cameras are used to fight crime and have elicited little public concern or criticism. Authorities are also monitoring the internet more closely in an effort to curtail child pornography.
These actions are seen by some as an assault on privacy and a reduction of personal freedom, yet few would suggest that authorities be barred from access to such data.
In a 1902 case, Judge Alton B. Parker noted, "The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals or newspapers."2
Such a view, however, is quaint and unsuited to contemporary times. Does it mean that a man should not have his business enterprises discussed if he is making dangerous products or evading his taxes? More to the point, what if a bank is laundering money to facilitate terrorist attacks? And should a person's "eccentricities" be overlooked if they include bomb building or, on a more domestic level, the dissemination of predatory child pornography?
Americans have no expectation of complete privacy. The Constitution does not explicitly grant or even address the right of privacy. It is what an Economist article describes as a "modern right", not mentioned by 18th-century revolutionaries in their lists of demands or even "enshrined in international human-rights laws and treaties until after the second world war".3 The Declaration of Independence, on the other hand, states without equivocation that every man is entitled to "life, liberty, and the pursuit of happiness". Note that life is the pre-eminent value. Above all else, it is for the protection of the lives of its citizens and their cherished freedoms, that the government has undertaken some of the steps that might be considered as intrusions on privacy.
We submit to checks of our baggage and person in order to board an aircraft, and most of us do so with little complaint, despite the inconvenience, because we want to arrive safely at our destinations. Likewise, most Americans are not terribly concerned by warrantless wiretaps of terrorist suspects, because they believe that their security and that of their families depends on aggressive measures by the government to combat terrorism.
The current debate over privacy is, in many ways, specious, and it has become a cliché, as T.A. Taipale has written, "that every compromise we make to civil liberties in the 'war on terrorism' is itself a victory for those who would like to destroy our way of life".4
While most Americans have an expectation of privacy in their own homes, especially in terms of their intimate relations, the current debate does not revolve around such issues. Rather it concerns technologies that are, in most respects, public, where there is no presumption of privacy in a traditional sense.
Airline travel, the use of telephones and access to the internet are not rights, rather they are privileges and, as such, they are very much public activities and endeavours. Accordingly, some level of government oversight is not unreasonable in order to maintain the integrity of the systems that underpin such technologies and to prevent them from being used to harm others.
If someone wants to opt out and not be subject to government scrutiny, he or she can forgo airline travel, the use of the telephone and the internet, and even personal identification and credit cards. I would even be willing to implement a two-tier security system at the airport which has one line for flyers who voluntarily surrender some personal data and perhaps even a biometric in order to expeditiously pass through security and a second line for those desiring anonymity, who therefore will be subjected to a complete and thorough search of their person and luggage.
The great civil libertarian and Supreme Court Justice Hugo L. Black wrote that, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."5 Our Constitution clearly protects us from egregious violations of our rights and I fully embrace appropriate measures to ensure that government does not abuse its power. At the same time, Americans are a pragmatic and commonsense people who understand that there are few, in any, absolutes in life and that their privacy is not being unreasonably eroded by efforts taken to ensure their security and prevent terrorist and other malicious attacks. They believe, moreover, that the first obligation of government is to protect its citizens, and are willing to grant authorities a measure of latitude in this task.
1. John Steinbeck, NBC interview, Dec. 3, 1967.
2. Alton B. Parker, Robertson v. Rochester Folding Box Co., 171 N.Y. 538, 544 (1902).
3. "Learning to Live with Big Brother," The Economist, September 27, 2007.
4. K.A. Taipale,"Technology, Security and Privacy: The Fear of Frankenstein, The Mythology of Privacy and The Lessons of King Ludd," Yale Journal of Law and Technology, 2004-2005, p. 130.
5. Hugo L. Black, Giswold v. Connecticut, 381 U.S. 479, 510 (1965), dissenting opinion
The Opposition's opening statement
Feb 5th 2008 | BOB BARR
Ayn Rand, a 20th-century philosopher, correctly understood the central importance of privacy to the underpinnings of freedom.
As she noted through the words of Howard Roark, the protagonist in her 1943 novel, The Fountainhead: “[c]ivilization is the progress toward a society of privacy … [c]ivilization is the process of setting man free from men”. While Ms Rand wrote in the middle of the 20th century, and the authors of the US Bill of Rights (most importantly, James Madison) penned their treatises in the late 18th century, the notion that privacy is an essential ingredient of freedom also clearly undergirds the work product of their genius.
Absent an acceptance of the view that individuals possess an inherent, inalienable right to their own views and to have their own tangible and intangible possessions remain free from government intrusion, there would be no reason to even incorporate a Bill of Rights in the American constitution. What meaning would the First Amendment’s guarantee of religious, political or expressive beliefs have, unless understood first to be based on the principle that individuals have a right to their private opinions and views? Would there be a purpose to have incorporated a guarantee of the “right to keep and bear arms” as in the Second Amendment, unless first accepting the notion that one is entitled to the privacy of something worthy of protection by exercising that right to keep and bear arms? And what value would be gained by incorporating the Fourth Amendment’s guarantee of the sanctity of one’s person, “houses, papers, and effects against unreasonable searches and seizures”, if not predicated first on the principle that there exists such a thing as privatepossessions?
The centrality of the right to privacy as a cornerstone not only of modern-day Western societies, but of civilisation itself, is precisely why the ongoing erosion of this fundamental right -- a process that has accelerated greatly since the events of September 11th 2001 -- is so disturbing and should be resisted strongly.
Many of those who favour sacrificing privacy for security, including the current political leadership in Washington, DC and in London, posit at least two premises in support of their views. First, that the new paradigm our countries face in the form of 21st-century terrorism, is so different from and more dangerous than anything that could have been contemplated by the 18th-century drafters of the Bill of Rights, that the notions of individual privacy incorporated therein are no longer relevant. Second, that even if such notions are important, the limitations necessarily being placed on the exercise of one’s personal right to privacy by government policies designed to thwart post-9/11 acts of terrorism, are temporary and will be restored once these current adversaries are defeated; in the same way limitations on privacy in earlier wars were later restored.
Acts of terrorism in recent years have resulted in significant casualties—the September 11th 2001 hijackings, the Madrid train bombing of 2004 and the British transport bombing in 2005, for example—and steps must be taken to prevent their recurrence. However, to make the rhetorical jump from that reasonable proposition to the position that modern-day terrorists present such a novel and not heretofore contemplated threat to our way of life that the structure that our governments designed to protect privacy as a foundation of freedom must give way, makes no sense and is unsupported by history.
For example, when the privacy-based provisions in the Bill of Rights were crafted, debated, and adopted by the US in the years immediately after the fledgling country won its independence, the country faced security threats far more dire than those posed our countries nowadays by practitioners of terrorism. Yet in the face of very real threats to the survival of this new country by the world’s then most powerful nation, the drafters of the Bill of Rights incorporated therein very explicit and real limitations on the power of government to invade individuals’ privacy.
Some might take solace in the siren argument of a George W. Bush that whatever encroachments on our privacy are necessary in order to meet the challenges posed by terrorists should be acceptable because they are temporary—like the encroachments suffered in earlier crises including the American civil war, or the first or second world wars. However, to accept such an argument in the face of how Mr Bush and the architects of his current strategy describe the present situation, is foolhardy. To these purveyors of government power, the “global war on terror” in which we are enmeshed is indefinite and encompasses the entire globe—every country, every city and town, every neighbourhood. In this universe, every person—neighbour, co-worker, fellow passenger -- is and will remain a potential terrorist. Thus, the situation in which we find ourselves as described by the very same leaders seeking to take away our privacy, is unlimited in every parameter—time, geography and population.
The temporary becomes permanent.
One might still be willing to accept some erosion of privacy, if such were proven to make us safer in fact. However, to buy into this notion, one has to be willing to suspend common sense, and accept the matrix that you find the “bad guys” by profiling the “good guys”. In other words, you’ll find terrorists by compiling more and more information on more and more non-terrorists; that is, citizens generally.
The reality is, you will find terrorists, if at all, by gathering good intelligence, and by adhering to sound intelligence and law enforcement techniques.
Every moment, every euro expended gathering intelligence on law-abiding persons, or spent limiting the freedom of law-abiding citizens, is a resource not focused on the real, legitimate task of government. Eroding the citizenry’s privacy—which undermines and diminishes our very way of life—is not only bad policy, it is counter-productive.
The Moderator's opening statement
Jan 15th 2008 | ROBERT COTTRELL
Welcome to the third Economist online debate. It is my pleasure to extend a friendly handshake to regulars from our first two debates, and a warm welcome to newcomers.
Our debate will proceed through opening statements, rebuttals and closing statements. We will allow votes to accumulate throughout the debate. And we will hear interventions from three outside experts.
Our first debate, last year, about the implications for education of new technology in general, produced a vote of confidence in technology (as you might expect from an online debate, all other things being equal).
On that basis, I would say that Michael Bugeja, the opposer of our current motion, occupies the more difficult terrain. Rightly, in his opening statement he comes out fighting. He warns that "technology has made us compliant"—a condition that many teachers might welcome among their pupils, but which would horrify educationalists who believe that part of the job of schooling is to inculcate independence of mind, curiosity, and a proper measure of scepticism.
I see that Mr Bugeja has based his arguments primarily on existing, large, commercially-run social networks. The motion, however, invokes "social networking technologies": presumably these can also power not-for-profit social networks of a more local and private kind, better suited to a school environment. I expect that commenters will press Mr Bugeja to explain more fully whether he believes that social networking technologies are intrinsically problematic, or whether his criticisms are limited to existing, commercial, social networks.
Mr McIntosh has given us a strong, even visionary, opening statement, in which I am pleased to see that parents occupy a prominent role. In our first debate, I was shocked to find that parents were left out of the argument almost completely, by speakers and commenters alike.
I admire Mr McIntosh's hope that social networks can keep parents "more in touch with what their children are actually learning, rather than simply what they've 'done' at school that day."
I can see greater transparency of this sort appealing enormously to parents. I am less sure about its attraction to pupils. I find it hard to imagine any child of school age wanting to join a club of which his parents were also members.
My own worry about social networking in education is that it may offer, at least to some degree, a substitute for real-world interaction, and thus subtract from the role of schooling in transmitting basic social skills and habits. On that basis, the more successful that social networks become in their own terms, the greater the damage they might do. And that, if it happened, would surely be so great a setback that the easier exchange of information and expertise online would scarcely compensate.
In the same vein, I twitch to hear Mr McIntosh embrace with apparent enthusiasm the obsolescence of the physical classroom. In his view: "it's impossible to envisage tomorrow's parents, the Bebo Boomers, accepting the 9am-4pm, timetabled, do the exams you're told to when you're told to, inflexibility of the 20th Century school."
This may be true. And perhaps social networking may offer a more flexible model. But the claim is made on behalf of each successive generation that it will break the mould in which its predecessors were formed. In practice, the generational changes down the course of human history have tended to be more of the incremental kind, and no doubt they will remain so.
But contentious argument is our stock-in-trade here. The debate is open. The positions are clear. We are all among friends. The argument is a good one. Let us see how it develops.
The Proposition's rebuttal
Feb 8th 2008 | NEIL C. LIVINGSTONE
My honourable opponent, Mr Barr, has offered up a great many generalisations about privacy that may be fine in theory but which have little application in the modern world.
Like Mr Barr, I believe that privacy is a basic right that should be supported to the extent possible, but whereas he regards privacy as underpinning all other rights, I view it as one of the benefits of a secure nation capable of successfully thwarting foreign assaults by those who neither share our values nor subscribe to our democratic principles.
In other words, if you have little security you most assuredly will have little privacy, for privacy is one of the benefits of a secure society, just like political freedom. Any people who live in constant fear and trepidation are unlikely to place great value on abstract rights like privacy and freedom. Adlai E. Stevenson observed: "A hungry man is not a free man." Well, Mr Barr, neither is a frightened man.
The right to privacy, moreover, does not mean that every man can live completely apart from society, anonymous and uncounted like Thoreau at Walden's Pond, free from any obligations to the welfare of his or her fellow citizens. As I suggested in my opening remarks, we may no longer consistently avoid the notice of others simply by minding our own business; the contemporary world is just too complicated for that and the threats too serious. We may offer nonconformists some anonymity so long as they don't try to board an airplane, use the internet, or pay for a purchase with a credit card. But it is not too much to ask that every citizen have some form of secure personal identification. This is critical to an orderly and smoothly functioning society, and not only helps in the fight against terrorism but is the key to halting illegal immigration.
Mr Barr argues that it is a suspension of common sense that the so-called "good guys" must be profiled to discover the "bad guys". But what is he suggesting? That we should forgo any effort to collect data about airline passengers because we will necessarily accumulate more data about non-terrorists than terrorists, given that there are tens of millions of ordinary flyers compared with only a handful of terrorists? Our task is to differentiate between malicious actors like terrorists and criminals and the great mass of ordinary humans who simply want to go about their activities free from the threat of being mugged, robbed, defrauded, sexually assaulted, hijacked, maimed or killed in a terrorist blast, or harmed in some other way. Most citizens are willing to permit governments, in the words of K.A. Taipale, to employ "advanced information technologies to help identify and find actors who are hidden among the general population and who have the potential for creating harms of such magnitude that a consensus of society requires that government adopt a preventative rather than reactive approach".1
Mr Barr also contends that "In this universe, every person—neighbour, co-worker, fellow passenger—is and will remain a potential terrorist." In reality, the truth is precisely the opposite. The use of advanced information technologies will enable us to draw distinctions between ordinary law-abiding citizens and what Mr Barr refers to as the "bad guys". Scarce resources can then be focused on potential suspects rather than on the broad masses. Once this is accomplished, our safety, as well as our privacy, can be better preserved.
Barr further asserts that "You will find terrorists, if at all, by gathering good intelligence, and by adhering to sound intelligence and law enforcement techniques." I concur, but what does he think these "techniques" consist of? I certainly hope he is not advocating a return to the naive period characterised in US Secretary of State Henry L. Stimson's famous remark that "Gentlemen do not read each other's mail." It was because of short-sighted men like Mr Stimson that little more than a decade later the US suffered the Japanese sneak attack at Pearl Harbor, in large part because the US had no real intelligence service and was reluctant to employ modern technologies to monitor potential challenges from abroad.
The advent of modern terrorism and the existence of chemical, biological and nuclear threats make it impossible to consider concepts like privacy in the framework of old laws and attitudes. At the same time, we should not make a fetish out of security or the new technologies on which it depends. But neither should we ignore these technologies because we are afraid they might be misapplied or misused. Today, for example, we utilise modern information technologies to protect our societies and keep track of terrorists and other malefactors. This includes the use of surveillance cameras, access to major databases, telephone and email intercepts, and various methodologies for authenticating identity. Protecting privacy in this era calls for appropriate rules and regulations to ensure that such information is not used promiscuously or out of context, and there must be independent government oversight by, in the US, the Congress and the courts.
It is absolutely incumbent on us that we protect our societies and promulgate a sense of security among our citizens, for not only do we face unparalleled threats from abroad, but it should be remembered the tyrant always comes in the guise of the protector. The first duty of government is to protect its citizens and if it fails this test then all of our other rights and privileges, including privacy, will soon be under assault. Rather than railing against technological intrusions on privacy, Mr Barr should recognise that these same technologies may, in the end, reinforce privacy in the modern world. In other words, by contributing to the security of modern societies, new information and surveillance technologies may actually do more to promote privacy than to diminish it.
Henry Weinberger asserted that, "The greatest right in the world is the right to be wrong."2 Mr Barr, I am ready to both acknowledge and support your right to be wrong because there is sufficient security in our society to have civil discourse free from intimidation and the threats posed by terrorists, dictators and other enemies of liberal democracy.
1. K.A. Taipale, "Technology, Security and Privacy: The Fear of Freankenstein, The Mythology of Privacy and the Lessons of King Ludd," Yale Journal of Law and Technology, 2004-2005, p. 129.
2. Henry Weinberger, New York Evening Post, April 10, 1917.
The Opposition's rebuttal
Feb 8th 2008 | BOB BARR
Security has become the holy grail of this nascent 21st century. Like the knights of yore searching in vain for that ephemeral object, those in today’s world seeking the comfort of security will be doomed to disappointment.
The question of achieving security is, in a fundamental respect, a specious one, for absolute security can never be had, and temporary or partial security is achievable only at a price to be traded off against liberty.
As a former US president, Dwight Eisenhower, observed in 1949, “If all that Americans want is security, they can go to prison. They’ll have enough to eat, a bed and a roof over their heads.” Granted, Mr Eisenhower spoke then of the threat of a dictatorial government imposing its will on the American people; but the point is as relevant when discussing the threats posed by radical regimes and non-state actors today as when applied to a more traditional adversary, like the former Soviet Union.
The US and the UK are both great powers, with impressive histories emphasising individual rights and limitations on government power. Both have withstood serious challenges to their societies, and have managed to meet those challenges while maintaining the essential freedoms that over the centuries have made the countries great; that is, until now. I continue to reject the notion that we must open up our lives in their full private details in order for our governments to protect us, my friend Neil Livingstone’s eloquent arguments to the contrary notwithstanding.
Mr Livingstone seems to afford our current crop of “enemies” powers and sophistication of almost superhuman magnitude, even as he appears to minimise the strengths of our society.
Yes, our enemies use and know how to use modern means of communication to plan, coordinate and carry out their dastardly deeds. And yes, the threats they pose are, as my learned colleague notes, “very real and ongoing”. But the infrastructures on which our Western society are based are hardly so “fragile” (to use his terminology) as to require a complete surrender to our governments of our fundamental privacy in virtually all its aspects.
I do not argue with the proposition that our governments have taken steps—and should continue to take steps—to “monitor the activities, communications, and movements of potential terrorists and other aggressors”. But the quantum leap from that reasonable proposition, to the unreasonable situation in which our governments have placed us today, in which all international communications of whatever nature—even between persons with no known or suspected relationship to any terrorist or terrorist organisation—is unnecessary and completely unacceptable.
Governments employ fear (“the foundation of most governments”, as noted by President John Adams in 1776) routinely in this day and age to take and to retain powers far beyond those reasonably necessary to meet threats such as those Mr Livingstone correctly identifies are out there.
The proposition that air travellers subject themselves to screening for weapons and explosives, for example, is a “reasonable” response to the threat of hijackings. Likewise, government investigations inquiring into financial transactions and international communications to uncover, thwart and prosecute cases of money-laundering to fund terrorist acts, or to coordinate such acts, likewise are “reasonable”. However, the government simply cannot seem to resist the urge—nor can Mr Livingstone—to use arguments supporting such reasonable intrusions as the basis to go much further.
Thus, we now not only require passengers to submit to steps designed to ensure they are not taking weapons or explosives on commercial aircraft, but to submit also to mini-background checks, and to questioning if a Transportation Security Administration “behaviour detection officer” discerns “suspicious” expressions or body movement. And, once thus singled out, the targeted individual, though not a terrorist or posing any conceivable threat, might be arrested because there is some other legal proceeding outstanding against him or her, all because he or she simply wanted to travel from point A to point B. Other examples abound.
While Mr Livingstone hangs his defence of privacy-invasive government powers on the further notion that “Americans have no expectation of complete privacy” (emphasis mine), this is a red herring. One does not have to take the position that we are entitled to absolute privacy or complete autonomy, in order to legitimately take issue with post-9/11, privacy-invasive government actions.
First of all, as argued in my opening statement, “privacy” is not a “modern” right, as Mr Livingstone would have us believe; it is a fundamental underpinning of civilised society. The right to privacy was recognised as such in a legal context by Supreme Court Justice Louis Brandeis in 1928 in the famous Olmstead decision, as “the most comprehensive of rights … the right most valued by civilized man” (except Mr Livingstone apparently). My learned opponent, however, discounts this as a “quaint” notion “unsuited to contemporary times”. Have fundamental rights become hostage to the passage of time; or to another dismissive characteristic heralded by my colleague–whether intrusions elicit a certain degree of public criticism or concern? Are fundamental civil liberties of man in a free society valued so lowly that the passage of time or the ignorance of the public relegates them to the “quaint” dustbin of a bygone era?
Finally, Mr Livingstone dismisses privacy-invasive techniques employed by the government in the name of fighting terrorism, because the activities the government is thus limiting (travel, communication by use of devices, etc) are “privileges” and thus deniable at will by the government. I suspect America’s founding fathers, who employed speeches, private writings and newspapers to masterfully convince an entire people that liberty can and should be enshrined in a Constitution and Bill of Rights limiting government power and maximising individual liberty, would respectfully disagree with my worthy opponent who dismisses these actions as mere “privileges” to be taken by the government in the name of whatever the policy of the day might be.
The government has a responsibility to secure the nation’s borders, and to provide protection against attack and criminal actions. But to elevate this responsibility to the level of trumping all other rights was not, I submit, posited or even contemplated by those who framed our liberty so many decades ago. And we should not allow government to do this now, no matter how noble the justification.
The Moderator's rebuttal
Feb 8th 2008 | DANIEL FRANKLIN
First, let me commend both Neil Livingstone and Bob Barr on the quality of their contributions. Their opening statements and now their rebuttals have set the tone for an engaging debate.
Along the way I have particularly enjoyed their expert use of quotations, from Dwight Eisenhower and Henry Stimson to John Adams and Adlai Stevenson. This has inspired a liberal sprinkling of quotations in the comments as well, including, at latest count, no fewer than four versions of Ben Franklin’s observation that if you sacrifice freedom for security you will have neither (that now makes five).
The rebuttals highlight two points at the heart of this debate: one of principle, the other of pragmatism. The point of principle is how high in the hierarchy of basic rights privacy stands. For Mr Livingstone, security comes first: “If you have little security you most assuredly will have little privacy.” Mr Barr insists the right to privacy is paramount: temporary or partial security, he says, is “achievable only at a price to be traded off against liberty”.
The argument over pragmatism concerns how intrusive security measures need to be, given the threats that governments have to deal with in the real world. Here both sides grudgingly give a little ground: Mr Barr accepts that governments need to monitor potential terrorists; Mr Livingstone agrees that there must be checks on the potential excesses of monitoring by the state.
But both sides take this step back only in effort to leap past their opponent. For Mr Barr, the extent of government prying is already “unnecessary and completely unacceptable”. For Mr Livingstone, gathering data is actually a way to protect privacy through providing security.
A number of the comments have stressed the idea that the trade-off between security and privacy is not so much a matter of either/or, but one of degree. “This debate is at least partly a question of culture,” writes Mensoelrey. “Some cultures value privacy more highly than security and vice versa.”
It is also, inevitably, a matter of definition. As Icarus12 notes: “The problem with arguing in these nebulous concepts is that there are shades of grey to privacy. Is the privacy of being able to have an untapped phone conversation on par with the privacy of being able to have your personal information disclosed only with your permission? What in fact makes information and actions personal?”
Neil Shrubak hopes that the remainder of the debate will stay focused on what he succinctly describes as the fundamental issue: “the trade-off between the fundamental rights of an individual and the government's need for effective administration of the state”.
So far, the voting suggests that opinion is most concerned about protecting the rights of the individual. But there the debate is still not over and, as America’s primary season shows, voters’ opinions can swing quickly. Here’s hoping, at least, for a high turn-out.
The Proposition's closing statement
Feb 13th 2008 | NEIL C. LIVINGSTONE
Privacy is dead, at least in the traditional sense. Get over it.
I know this is not a popular assertion, nor is it what this audience wants to hear, but it is time to reframe the debate and become serious about what we can do to harness the new technologies reconfiguring the world and eroding our privacy and enlist them in an effort to erect a new privacy paradigm.
In his rebuttal, my opponent, Mr Barr, cites the words of Justice Louis Brandeis in his dissenting opinion to the 1928 Olmstead decision, to the effect that privacy is the most "comprehensive" and "valued" right of "civilised men". I have, by contrast, in my earlier remarks suggested that the right to life is even more valued and fundamental, and must be protected and guaranteed, to the extent possible, before rights like privacy can be fully appreciated and prized. Moreover, Mr Barr failed to note that Justice Brandeis, in the very same passage in his dissent to Olmstead, described privacy as "the right to be let alone".1
By that standard, I am fully in agreement with Mr Barr. I believe that all citizens should be left alone unless they are engaged in criminal or antisocial conduct. This does not mean, however, that we should not monitor certain activities, technologies and movements to ensure that people are not guilty of malicious behaviour, nor should we hesitate to develop databases to protect society from the transgressions of known or would-be terrorists and criminals. What is wrong, for example, in protecting families with young children by maintaining national databases, available to the public, of convicted paedophiles, including their addresses? Only those who have been convicted of crimes against children would be included in such an inventory and the great mass of citizens would not be harmed in any way; they would only benefit from such information.
Let us turn our attention to the internet. The internet cannot function without vast amounts of data and certain personal information stored online. However, if our information is properly stored and protected, and access to it is appropriately controlled, how much real privacy have we lost? Haven't we lost vastly more privacy if our identities are stolen or the computer systems we depend on are incapacitated by denial of service attacks? Credit cards make our lives immeasurably simpler and more convenient, yet they, too, depend on validation codes and full owner information. Do we want financial fraud and theft to flourish because we want to restrict the amount and kind of information needed in the verification process? In short, if we are identified, but not compromised, what have we lost?
There are vast criminal cyber-networks in existence today seeking to acquire and sell the intellectual property on which much of our national economy depends. Other malicious actors regularly hope to compromise our national security by breaking into highly sensitive and restricted computer sites. Should we not do everything in our power to police such activities and preserve both the utility and efficacy of the internet, even if it means that we may have to scrutinise all users in order to identify what my opponent has referred to as the bad guys? There may be no other alternative. If there is, I would like Mr Barr to put it forward, since his arguments are long on feel-good rhetoric and short on substance.
Returning to my introductory comments, if citizens are not misusing the internet or telephonic communications, or attempting to board an aircraft in the hopes of hijacking it, to cite only a few examples, then they have nothing to fear from government scrutiny. With this in mind, I am not suggesting that some actions and activities should not remain private and beyond the ordinary interest of the government. But these should be activities that are inherently private, like most intimate relations, medical records and the inviolability of the home (without a court order). But activities that occur in the public sphere must be subjected to more scrutiny in order to protect society and ensure their safe and uncompromised operation. As I have suggested in my earlier statements, if a citizen desires to live below the radar, then he or she should not use the internet, try to board an aircraft, make a purchase with a credit card, or place phone calls. I, for one, am happy to subject myself to reasonable government scrutiny, and to provide certain personal data, in order to do all of these things conveniently and without serious disruption.
The new technologies that many seem to fear, I believe, may in the end actually do more to liberate us than enslave us. The global access to information technologies will make it more and more difficult for repressive and dictatorial governments to oppress their citizens without fear of exposure and international sanction. The internet has played a major role in political reform and empowering ordinary citizens in China. Surveillance cameras are already liberating citizens, especially the elderly, from the constant fear of crime. Universal access to DNA information, opposed by many civil libertarians, would go a long way to ensuring many innocent people are not convicted of crimes they did not commit.
Surveillance of communications and the movements of certain individuals are great tools in fighting terrorism and ensuring the security and happiness of our citizens. Just think, if the US intelligence community had more aggressively collected information prior to 9/11, and had properly connected the so-called "dots", we might not be at war today in Iraq and Afghanistan. Moreover, this debate would probably not be taking place because the new security procedures which my opponent rails against would not have been implemented.
In closing, to be a defender of reasonable and commonsense security does not mean that one has to become the enemy of privacy. Quite the contrary; my opponent, if his views were to prevail, would so diminish and undermine security that privacy also would soon become a casualty of his folly.
I have enjoyed the opportunity of taking what is the more unpopular and seemingly less sympathetic position in this debate. I understand that many of you are cynical and skeptical about the demands of security versus privacy in the contemporary world. I would only ask that you carefully consider my arguments and try to expand the way you view this complex debate before making a final judgment.
1. Louis D. Brandeis, Olmstead v. United States, 277 U.S. 438, 478 (1928), dissenting.
The Opposition's closing statement
Feb 13th 2008 | BOB BARR
My learned opponent, Neil Livingstone, has raised a number of interesting points in the course of his effort to defend the position that the only way security can be achieved in this era is to take away our privacy.
Before I turn to rebut a few of these arguments in my continuing effort to show that this proposition is wrong, let me begin where Mr Livingstone ends the rebuttal he has previously submitted.
Mr. Livingstone premises the entire structure of his arguments on the principle that the first and most important duty of the government is to protect its citizens. If one accepts this premise, then it becomes quite easy to be lulled into accepting the notion that privacy must give way to measures the government deems necessary in its effort to provide security for the people. If security trumps all else, then, of course individual privacy must fall; and fall gladly in Mr Livingstone’s world.
The fact of the matter is, however, the primary, or first duty of the government is not to provide security for the citizenry; it is to serve as guardian of the rights guaranteed the citizens under the founding documents and principles of the nation. Certainly, the government has a responsibility to provide security measures for the citizenry, but that is a subsidiary duty of the prime duty to guarantee the rights of the people. Were it otherwise—were it as Mr Livingstone posits—then it becomes easy and quite acceptable for the government to decide that security necessitates listening in to private conversations at will, reading people’s mail at will, preventing individual law-abiding citizens from travelling, and all those other intrusions to which we have been subjected since 9/11, simply because the government believes people generally are safer if certain people do not travel or communicate privately. And, most importantly, it matters not if such measures violate other rights, such as the right to privacy, because they are inferior rights. I reject this proposition just as, I am confident, America’s founding fathers would.
The 21st-century world is a dangerous place; I grant Mr Livingstone that premise. But so was the 18th-century world; the time in which the principles on which the US was founded were crafted and enacted in a Constitution and Bill of Rights. To my opponent, these what he labels concepts (easier to denigrate than calling them what they are, rights), including the right to privacy, must give way to new threats because the “framework of old laws and attitudes” are, well, outmoded. Such situational interpretation of fundamental rights has been a convenient tool of despotic governments in all ages. The dangers evident in this model were understood and rejected by the Framers. If it were otherwise, then they would have incorporated into the Bill of Rights, for example, language making clear that rights such as the right to be free from government intrusion absent probable cause that a crime was being or had been committed, could be unilaterally suspended or denied by the government whenever it decided the security required it. This is simply not the case, and using fear of terrorist actions to do what the Constitution prohibits is dangerous and it is wrong; it is also unnecessary.
The rights guaranteed in the Bill of Rights are not ephemeral, abstract rights, the category to which Mr Livingstone relegates them. He even denigrates freedom to such status, and thereby lays the groundwork for his later effort to justify diminishing it in order to provide security. Security, which in my opponent’s words is seen in the “orderly and smoothly functioning” of society, has long been the tool whereby governments force the citizenry into doing their will. Doing whatever is necessary to make the trains run on time will always appeal to a large segment of the population; but this does not mean that allowing the government to do so by taking away fundamental rights is acceptable or just.
Part and parcel of Mr Livingstone’s approach is the notion that the government is entitled to pre-emptively protect citizens or the security interests thereof, a “preventative” paradigm, as he calls it. Just as governments such as the current administration in Washington, DC believe pre-emptive invasions are a legitimate tool of foreign policy, pre-emptive intrusions into the liberty of citizens domestically can be justified simply on the grounds that doing so accomplishes certain desired security objectives. The government is simply pre-emptively fulfilling what Mr Livingstone views as its fundamental and overarching responsibility to provide security. As appealing as this notion might be, it cannot be squared with limitations on government power in Bill of Rights, especially the Fourth Amendment; unless, of course, one has bought into the idea that offering a sense of safety to the citizenry is the single most important function of the government and everything else must fall in its path.
Mr Livingstone himself ultimately falls into the trap set by his faulty premise. As noted previously, in his rebuttal he concludes that the right to privacy must give way to security measures designed to make society run smoothly and to eradicate any sense of fear. My opponent then further reminds us that in accepting this principle the reader should keep in mind that “the tyrant always comes in the guise of the protector”. This statement makes the case against the very premise of the debate topic before us, perhaps more vividly than arguments using words of my own choosing. The government that presents itself as the protector isalways the one that becomes (or already is) the tyrant. I thank my opponent for providing in summary the very reason we should fear—and never accept—the principle that the government be allowed to take away our fundamental right to privacy simply to make us feel safer.
The Moderator's closing statement
Feb 13th 2008 | DANIEL FRANKLIN
Being a moderator in this debate has felt a bit like being a referee in a boxing fight. This one has gone the distance, though with no knock-out blows.
In the final round both men cleverly tried to make their opponent trip up over their own arguments.
Neil Livingstone, though on the ropes, has kept swinging to the final bell: “Privacy is dead, at least in the traditional sense,” he says. “Get over it.” He continues to taunt his opponent, calling his arguments “long on feel-good rhetoric and short on substance”. The audience is not backing him, and he knows it, but he bravely stands his ground.
Bob Barr, meanwhile, jabs away with the confidence of a man who not only scents imminent victory, but who has the crowd and (he claims) America’s founding fathers on his side. He stings his opponent with his point that it is protecting the rights of citizens, not their security, that is the primary duty of government.
And, as we near the end, he is prevailing. By a margin of more than two to one, the vote is going against the motion.
Most people, it seems, agree that, as World citizen put it, “To cherish security over freedom is short-sighted.” Neil Shrubak, in one of his excellent contributions, clearly spoke for the majority in summing up thus:”The point is that the expedient measures, no matter how noble by design, should not infringe on or go against the fundamental principles of the civic society, if we want to protect and nourish such a society.”
Whichever side of the argument you are on, one thing that all can surely agree on is that the subject of this debate matters greatly in the real world of policymaking. It so happens, for example, that at the very time that we have been discussing privacy and security online, a controversy has been brewing in Britain over the bugging of conversations between lawyers and their clients in prisons. Have politicians been tuning in to our debate? I hope so.
In closing, I would like to offer an apology and a word of thanks. I am sorry that some of the comments get unintentionally repeated—an irritation that we must try to remove in future. My thanks go to all who took part in this vigorous debate, especially of course to Mr Livingstone and Mr Barr, who ensured that this was a heavyweight contest of ideas.
The Moderator's winner announcement
Feb 15th 2008 | DANIEL FRANKLIN
The result is in, and by a handsome margin you have voted against the motion—in other words, in defence of privacy and the arguments advanced by Bob Barr.
Two points in particular seem to have carried the day. First, the majority plainly agreed that privacy is sacrosanct, not a subordinate principle in the pecking order. Second, most people felt that nothing in the current concern over terrorism justified sacrificing privacy on the grounds of pragmatism. As Tim Gatto put it: “I would rather face terrorists than live in a nation without liberty.”
Martin H’s comment, written from a country he says is commonly viewed as having “one of the nastiest regimes in the world”, seems to me to reflect the general sentiment that determined the outcome of the vote: “An argument now often used to justify introduction of extensive legislation violating privacy in Europe is that in our ‘free western world’ a person who has nothing to hide has nothing to fear. However, my concern is that no one controls the controller and there is a general lack of accountability of those who have the right to intrude on my privacy.”
It has been a good debate, with excellent contributions from Bob Barr and Neil Livingstone as well as from the many people who took part from our virtual debating floor. I would also like to acknowledge the contribution of our four guest contributors: W. Kenneth Ferree, Scott Berinato, Donald Kerr and Tom Sanderson.
Mr Ferree, president of the Progress and Freedom Foundation, points out that privacy is not so simple to define. “The difficulty with this debate is that privacy is not a static concept … Privacy is, after all, only what we as a society say it is.”
Mr Berinato, executive editor of CSO magazine, argues that ceding personal privacy because of terrorism is a disproportionate response, “akin to suggesting that we abandon San Francisco … because some day there might be an earthquake”. And he challenges the notion that privacy and security are in some kind of tug-of-war, a zero-sum game.
Mr Kerr agrees: “In my life and in my work, I start with the belief that you need to have both safety and privacy, and that when we try to make it an either/or proposition, we are making a mistake.” He adds: “Some people probably have a hard time believing that, though, given my day job.” Mr Kerr is America’s principal deputy director of national intelligence.
Mr Sanderson of the Centre for Strategic and International Studies provides what can serve as a fitting last word. He suggests that we “recognise that both sides of the debate have merit and work quickly but thoughtfully towards greater security with a minimal erosion of privacy”.
Featured guest's comments
Feb 7th 2008 | THOMAS M. SANDERSON
The “doomsday clock”, created by the Bulletin of Atomic Scientists in 1947, expressed the potential for a nuclear war with midnight representing the onset of catastrophe.
One modern version of that cold-war timepiece is the American Civil Liberties Union’s “surveillance society clock”, which conveys the degree to which the US is trading privacy for security in the post-9/11 world. In his blog “Six ticks till midnight”, a computer scientist, Jeff Jonas, an information-age privacy expert, warns that inevitable and irresistible technologies are leading us (willingly) into a surveillance society. Where will you be when the clock strikes twelve? If security-enabling technologies proceed unchecked by serious debate, good policy and oversight, the likely answer could be “nowhere secret”.
But is more security so insidious? And are we really marching inexorably towards an Orwellian world of total surveillance? Many believe that we are only one major attack away from such a scenario. This may be the uncomfortable reality of a world where some terrorists seek to use weapons of mass destruction. WMD attacks, though unlikely, would irrevocably alter our society. These threats are very real, versatile and not to be underestimated. A former CIA operations officer, Hank Crumpton, points ominously to an unprecedented asymmetry in conflict where small groups and individuals can exercise power once fielded by nations alone. Terrorists move across boundaries with ease, blurring the lines between what is foreign or domestic. They use technologies that the Soviet Union never arrayed against our intelligence agencies or military. Countering them with legacy tools and policies, we can agree, is proving extremely difficult. Despite this, Mr Crumpton, most recently US ambassador-at-large for counter-terrorism, does not believe that security and privacy are a zero-sum equation.
Meanwhile, consumers are absorbing technologies that promise greater convenience, productivity and security and can pinpoint one’s location with ease. Mated with this is precious little debate on policies that greatly increase government access to personal data used for security enhancements. Legislated amid a culture of fear, additional measures find their way into law through the domestic-security version of “mission creep”. This trend would spike dramatically following another terror attack as angry citizens demand immediate action.
What can we do? First, recognise that both sides of the debate have merit, and work quickly but thoughtfully towards greater security with a minimal erosion of privacy. For example, deploy privacy-enhancing technologies such as data anonymisation during information-sharing and tamper-proof audit logs to ensure the accountability of those who do the watching. Insist on real, bipartisan intelligence oversight. Prioritise societal resistance instead of surveilling infinite potential threats. Balancing military action with public diplomacy can thin the ranks of our adversaries. We can lower ill-will with programmes that put shovels and pencils—instead of guns—into the hands of the marginalised. Enhancing our security with sensible policy and technology is needed now before we fall back on privacy-eroding measures. There is an urgency to succeed as the clock ticks on.
Featured guest's comments
Feb 11th 2008 | SCOTT BERINATO
Benjamin Franklin famously remarked, “Those who would give up essential Liberty, to purchase a little temporary Safety deserve neither Liberty nor Safety.”1
Today, that sentiment is scoffed at as an antediluvian relic of a simpler time. Old Ben never had to worry about jihads and WMDs.
Maybe so, but then again, why are you worrying about jihads and WMDs? Michael Rothschild, a University of Wisconsin Business School Professor Emeritus argues eloquently in a November 2001 paper2 that we have been deceived, or have deceived ourselves, about the true nature and relevance of the terrorist risk. “Our leaders and media have not done a good job of discussing the risks that citizens need to consider when making choices in their daily lives.”
Rothschild conjures a horrible hypothetical scenario to prove his point: If terrorists were able to hijack and crash one full plane per week, and you travelled by plane once a month, the likelihood of dying in a terrorist-driven plane crash is still minuscule: 540,000 to 1. Even if that dreadful scenario would come to pass—and it won’t ever—you would be ten times more likely to die from a hornet, wasp or bee sting than from terrorism.
And yet terrorism is the driving argument behind modern efforts to cede personal privacy. It is a shockingly inapt justification, akin to suggesting that we abandon San Francisco all together because, some day, there might be an earthquake. The response is disproportionate.
I is also, frankly, inefficient. One does not find a needle any faster by putting all the hay in the stack. Intelligence agents, law enforcement, these groups have already pared down the haystacks through intelligence-gathering. Whatever privacy-invasive technologies they need to hone in on known and suspected bad guys, they already possess. Of course, they need a warrant to invade the privacy of bad guys and that is the crux of this push to remove our essential right to privacy. It will make their jobs easier to not have to wait for warrants or deal with courts reviewing the necessity of those warrants.
But warrants are not capricious bureaucracy. They are checks that exist for a reason, to balance the abuse of power that is inevitable if one allows unfettered access to personal data without warrants. Mr. Livingstone or others who believe that an erosion of privacy is necessary to ensure security might counter that if you have nothing to hide, why do you care if someone can access your personal information?
That is a common argument, but it is beyond speciousness and it demonstrates a callous disregard for the true definition of privacy. Privacy is not the right to conceal information about oneself. It is the right of a law-abiding citizen to choose what they wish to conceal or reveal. It is a subtle but important distinction often lost in the hysteria surrounding terrorism.
A key presumption behind this debate is that security and privacy are in some tug-of-war. Pull on one end and lose ground on the other. Can security and privacy not coexist? Can we not use the very same information technology infrastructure which so powerfully invades privacy to protect it? “I have to insist that there's nothing inevitable about the development of any technology. We do have it in our power to choose.”3 These are the words of a Georgetown law professor, Jeffrey Rosen, grappled with in his books “The Naked Machine” and “The Unwanted Gaze”.
Mr Rosen challenges both sides of the privacy debate to get past the binary nature of the arguments. The state of privacy is generally debated this way, as an either-or proposition. Either privacy is alive or it is dead. Even Franklin said you get liberty or you get nothin’!
What would work better for talking about the state of privacy is the vocabulary of conservation. Think of privacy as a limited natural resource. In some places, it is thriving. In others, we’re clear-cut. Gone unmanaged, it will run out.
Security is necessary. But it should not and cannot be used as the excuse to take away individual privacy. What we need, to borrow another word from the green vernacular, is balance.
Visit Mr Berinato's website
1. http://www.bartleby.com/73/1056.html
2. http://www.aei-brookings.org/policy/page.php?id=19
3. http://www.csoonline.com/read/010104/rosen.html
Featured guest's comments
Feb 12th 2008 | W. KENNETH FERREE
By focusing on what governments might do in the search for terrorists (and whether there is some privacy limit on those activities), both sides pretermit an important corollary question: what exactly is the sphere of private space that one might reasonably expect to remain sacrosanct? That is a sociological question, not a public-policy question.
Privacy is not the same thing as anonymity. No one expects to pass through life unnoticed. There have always been aspects of our lives open to public scrutiny. Walking down the street leaves one open to being recognised by a neighbour or a cop. The purchase of a home results in facts about one’s financial situation being collected and recorded by financial institutions, in property records and with tax authorities. Let us refer to these non-anonymous exposures as being “noticed”.
The means by which one is “noticed” are constantly evolving. Property records have long been public, but retrieving them once involved a trip to the county courthouse. That same information can now be retrieved at the touch of a button. The cop on the corner may now be an electronic eye of a camera. Perhaps soon a visit to the airport security line may include having one’s name or image washed through an Interpol database.
It is fair to be concerned, as Mr Barr is, that this evolution in the way information is collected, stored and accessed can make our passage through this world less anonymous. Is that the same thing as saying these advances diminish our privacy? An answer to that question requires some agreed understanding of what the sphere of “privacy” includes. As Mr Livingstone suggests in his opening statement, that understanding, too, is evolving.
I am old enough to remember boarding commercial flights without going through any kind of metal detector, bag search or ID check. Before credit cards became commonplace, it might have seemed unthinkable that a company would track where we shopped or how much we spent. E-tailers now not only know what we purchased yesterday, but can project what we are likely to buy tomorrow, based on computer-generated personal profiles.
The difficulty with this debate is that privacy is not a static concept. The generation growing up after mine has been raised with technologies that open the world to them and them to the world. They are, consequently, far less inhibited about the information they are willing to share with the world than my generation is. Yet the premise of the proposition is that some category of information that is now regarded as “private” will become less so as governments scour the digital world for security threats. As Mr Livingstone points out, new technologies inevitably will make us less anonymous. The real question, though, is whether our notion of what is encompassed within the “private” sphere will correspondingly shift such that new ways of being “noticed” are not regarded as outré. Privacy is, after all, only what we as a society say it is.
Featured guest's comments
Feb 14th 2008 | DONALD KERR
People are sharing more information about themselves and others than ever before, a reality that some believe has implications for our traditional notions of privacy.
In December, a commentator on National Public Radio was summing up the trends of 2007, and made this observation.
“What is spooky is not just that Britney Spears gets followed [by the paparazzi],” he said, “but if you go on YouTube, sometimes somebody will actually post videos of people having an argument at a restaurant [that they captured on their cell phones] … One of the things that's happening between that and the Facebooking, the MySpacing of society, and people photographing everything—so that now every car chase is photographed by scads of people—is that the idea of there being a zone of privacy that we all have around us is being whittled away, often deliberately and happily."
While more is available on the internet than before—and motivated actors, whether we like it or not, can frequently find it out—this availability of information can make the jobs of intelligence professionals more challenging than ever.
Of course, our intelligence agencies should be able to use “open-source information” to help form intelligence judgments. In fact, we are criticised if we ignore such information. But in a world where open sources could include personal information, we must be careful. For example, just because someone has posted information on the internet does not automatically mean it was lawful to do so, or that it should be acquired by an intelligence agency. We have strict rules in this area and are developing additional guidance.
I do not agree with the argument that says in order to have more security, you need to have less privacy. To use a general example, the US government needs your personal information to issue social security cards, review applications for federally-backed school loans and process tax returns. These are necessary security precautions to make sure you are who you say you are, and protective measures such as those put in place by the Privacy Act and other statutes, regulations and policies provide safeguards to make sure that information stays private.
In my life and in my work, I start with the belief that you need to have both safety and privacy, and that when we try to make it an either/or proposition, we are making a mistake. Some people probably have a hard time believing that, though, given my day job. Movies like “The Bourne Identity” and “Enemy of the State” have given us in the intelligence community a terrible reputation. There are so many misconceptions about what we can do, both technically and legally. Our abilities and intentions are always exceeded by people’s fears.
This is a discussion our nation needs to have—not only for our intelligence community, but also law enforcement and the private sector. Our greatest challenge, though, will not be where to draw the line, it will be how to have the discussion in a way that is neither political nor founded on conspiracy theories.