On October 26, President Bush signed into law an antiterrorism package dismantling many privacy protections that Americans had long taken for granted. Although it was presented as a “compromise” from what the Administration proposed days after September 11, privacy advocates argue that the only real compromise involves Americans’ civil liberties. Many of the provisions are not limited to terrorism investigations but apply to all criminal investigations. The bill allows law enforcement agencies to search homes and offices without notifying the owner for days or weeks; it also overrides state and federal privacy laws, allowing the FBI to compel disclosure of any kind of records, including sensitive medical, educational and library borrowing records–merely by claiming they are connected with an intelligence investigation. While some of the provisions “sunset” or expire in 2005 unless renewed by Congress, the sunset doesn’t apply to ongoing investigations, which means that in many cases the measures will be here to stay.
Now that the antiterrorism laws have passed, however, the civil libertarian community is seeking to reframe its agenda in ways that acknowledge the “new normalcy.” Stock arguments that the government can do better with the tools it has don’t seem to comfort a terrified public. According to polls, the public is now more willing than ever to give up rights in the name of safety. Government warnings of more terror attacks can only serve to heighten that motivation. Meanwhile, civil libertarians insist that terrorism can be fought without unduly affecting liberties–leaving them faced with the question of what measures they believe would be both effective and noninvasive. In the following interviews, leading experts grapple with these difficult issues, searching for a vision of how the government can best guarantee both liberty and security.
Professor at Harvard Law School.
There’s a case for a very limited national identity card–one that would include only name, Social Security number, photograph, address and either a fingerprint or retinal print associated with a chip on the card. It would eliminate much of the excuse law enforcement has for racial profiling. That doesn’t mean that Arab-Americans wouldn’t be asked to show their cards more often. But showing the card would eliminate the kind of harassment that people have experienced on planes, including being asked to leave. I do not believe that an American citizen in the year 2001 has the right to anonymity. Entering the country is in some respect a privilege. I wouldn’t give an alien any fewer rights such as free speech, but I think that if you come to this country and are asked to carry a card and identify yourself, it is not an enormous burden.
Two other measures I have changed my mind on: One is the roving wiretap. Directing the wiretap against the individual rather than a specific phone is more consistent with the Fourth Amendment. After all, we civil libertarians have long said that the Fourth Amendment protects people, not places. You are more likely to be innocently heard if there is a tap against a phone then if there is a tap against a person. Let’s assume that my phone is the subject. Lots of people use that phone. But if the tap is only authorized to record my phone conversations and I am the subject of a probable-cause warrant, then I think it is actually more protective. The third thing is, which is much more controversial, facial-recognition technology. It will make mistakes, undoubtedly, but far fewer mistakes than racial profiling. I would much rather have facial-recognition technology set up at the World Series than some local cop picking out who looks Arabic or Islamic. I wouldn’t permit it to be used on any street corner, as they do in England. But in places where you are authorized to ask for ID, like entrance to government buildings and stadiums, facial-recognition technology is not something that civil libertarians should be concerned about.