Privacy vs. Security? Privacy.

We are being asked to become a weak nation that accepts surveillance without accountability that cannot defend both security and freedom.
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On November 13, 2007 the Miller Center for Public Affairs is hosting "Privacy vs. National Security," the second event in its National Discussion and Debate Series.

Read an opposing viewpoint by K.A. Taipale.*****

My opponents argue that as a consequence of 9-11, and with advances in new technology, we need to reduce our expectation of privacy and accept the boundless mass surveillance that has characterized this administration's policies over the last several years. I reject this position.

First, the privacy laws in the United States came about in response to new technologies. Far from accepting the view that innovation invariably erodes privacy, the United States has an excellent record for creating the legal rules that limit intrusive and unjustified invasions into private life.

In the 1960s, the Supreme Court said that the Constitution protects telephone calls, even when they take place in a public payphone with glass walls on a city street. Congress followed the Supreme Court's lead and established comprehensive protections for telephone communications in the United States. That law severely limited the ability of the police to listen in on telephone calls. It said that judges had to oversee eavesdropping. And it established an elaborate system of checks and balances to prevent abuse.

Other governments took a different approach. Wiretapping became the tool of police states and their agents. In East Germany, the private communications of journalists, authors and political opponents were routinely recorded and turned over to government officials.

The United States again rejected that approach with the growth of computer technology. In the 1970s with the automation of government records looming on the horizon, the Congress held high-level hearings and passed comprehensive legislation to prevent the creation of Big Brother record systems. The use of tax records to go after political opponents would no longer be allowed.

Other governments saw the creation of databases as a way to control populations and limit political opposition. The South African government established ID systems with racial categories to maintain apartheid.

Back in the United States, the Church Committee looked at the ways that the government had abused national security authority with surveillance technologies targeted at civil rights leaders, war protesters, and political critics. Congress established laws for intelligence surveillance in the United States.

Other countries continued to treat police as domestic intelligence agents, building secret files and tracking rumor and innuendo.

As new technology created new commercial opportunities and new privacy risks, the United States developed privacy safeguards. In the 1980s and '90s the United States established privacy laws for everything from junk faxes and auto dialers to email and polygraphs. The Do Not Call list, which now includes more than 140 millions telephone numbers, is just one of many examples of law responding to technology.

So, there is no reason that new technology means the erosion of privacy. Quite the opposite, it is the challenge to privacy brought about by technology that has shaped the legal right in the modern era.

The attacks of 9-11 challenged our country in new ways. But perhaps the biggest challenge was whether we would safeguard both our country and our Constitutional heritage or whether we would have weak leaders who were unable to protect the country without sacrificing our freedoms.

Regrettably, we found that our political leaders lacked the ability to uphold our laws. For electronic surveillance, they pushed aside the judiciary and asserted the President's authority to intercept the private communications of American citizens within the United States. Even with the broad powers of the Patriot Act, the White House grew impatient and colluded with the telephone companies to disclose private customer records without legal basis or judicial review.

For government database, they raced to establish Total Information Awareness, and when that system collapsed, they created "fusion centers" that contain detailed profiles on Americans who are suspected of no crime.

This administration has funded camera systems for our cities that now place both residents and visitors under constant surveillance. Technologies that were originally created to uncover terrorists routinely record people going to work and kids playing in a park.

Airline travelers are literally stripped naked by devices that provide millions in government grants to government contractors but little security benefit to the public

In too many cases, the administration has simply pushed these programs forward with little regard for privacy. They want the public to believe that if they sacrifice their privacy -- their liberty -- their security will be enhanced.

But Benjamin Franklin warned long ago that such a strategy would fail. The correct balance is not a metaphysical tradeoff between security and privacy. The correct balance -- really a counter-balance - is between the powers of government and the means of oversight that are established.

This is the point made clear by the 9-11 Commission. It is the oversight of government and the rights of the individuals that we are being asked to sacrifice, and no where is the cost more clear than with privacy.

In the modern era, the right of privacy represents a vast array of rights that include clear legal standards, government accountability, judicial oversight, the design of techniques that are minimally intrusive and the respect for the dignity and autonomy of individuals.

The choice that we are being asked to make is not simply whether to reduce our expectation of privacy, but whether to reduce the rule of law, whether to diminish the role of the judiciary, whether to cast a shroud of secrecy over the decisions made by government.

In other words, we are being asked to become something other than the strong America that could promote innovation and safeguard privacy that could protect the country and its Constitutional traditions. We are being asked to become a weak nation that accepts surveillance without accountability that cannot defend both security and freedom.

That is a position we must reject. If we agree to reduce our expectation of privacy, we will erode our Constitutional democracy. Marc Rotenberg is Executive Director of the Electronic Privacy Information Center in Washington, DC. He testifies frequently before Congress on emerging privacy and civil liberties issues.

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