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In the aftermath of 9/11, many Americans were only too happy to exchange some of their fundamental rights for the promise of security, especially if the ones losing their rights were other Americans. It was OK, for instance, for George W. Bush’s administration to create the Transportation Security Administration and for it to “keep us safe” by racially profiling Muslims—or, really, any person brown enough to be perceived as Muslim. It was OK for the government to suspend habeas corpus for the people detained at Guantánamo Bay.
The thing is, once rights and liberties are taken away, even if they’re only “suspended” in response to an emergency, those rights and liberties are extremely hard to claw back. Just look at the establishment of warrantless surveillance under Section 215 of the Patriot Act. The provision has been fought by civil liberties organizations for nearly two decades, and it was finally due to expire on March 15 of this year. But because of—wait for it—the coronavirus, Congress agreed to extend the provisions for a few months while the Senate works to pass the freshly titled USA Freedom Reauthorization Act of 2020. If passed, it will continue the kind of warrantless surveillance and data collection that Congress initially sanctioned as an emergency reaction to 9/11. Rights don’t just bounce back after a crisis passes.
The coronavirus pandemic will now test whether we’ve learned anything from our post-9/11 failures. As we settle into our long-term “emergency” response, we have to be vigilant about protecting our rights and liberties. But we also have to be able to engage in a nuanced conversation about the things we need to do to keep us safe. I’m not going to lie: I would absolutely sacrifice some liberty to keep my family safe from the virus.
The problem is that when the emergency is over, I expect my rights back. I expect other people to get their rights back, too, whether or not they can afford a lawyer to make that happen.
But public officials are always loath to declare an emergency over for fear that something bad will happen the next day. Covid-19 is an acute problem that we’re dealing with now, but the threat of a pandemic is ever-present and is something that smart people have been warning us about for some time. There’s always going to be the threat of another disease, so when exactly will it be safe for people to congregate in large groups again? Will the restoration of that constitutional freedom be delayed for those who want to congregate in large, closely packed groups to complain about the government? Because we can’t live in a world where we lose the right to protest.
Still, many of us can agree to live with a temporary ban on large public gatherings. (Being unable to go watch the Knicks has been a blessing disguised as a sacrifice.) But there are other rights we should never sacrifice, even in the face of widespread panic, because the threat of never getting them back is too great. The Department of Justice, an institution that has lost all trust and credibility under the leadership of Attorney General William Barr, proposed allowing judges the authority to indefinitely postpone all court proceedings in the face of the outbreak. This would essentially allow judges to suspend a person’s right to trial, giving the carceral state the right to hold people for an indefinite time without a trial or even a criminal charge.
It’s not surprising that Barr would first seek to curtail the rights of those who have been arrested. The encroachment on our civil liberties almost always starts with our most vulnerable citizens and radiates from there. Still, as we saw after 9/11, the deepest threat to our liberties might not be the suspension of some of our public rights but rather the enhancement of state surveillance of our private lives. Leaked documents obtained by The Nation’s Ken Klippenstein reveal that the Customs and Border Protection agency has an emergency plan in place that would allow the government to indefinitely track and even detain people reentering the country from abroad. If this power is ever exercised, it could probably never be stuffed back into its Pandora’s box.
Somewhere between an acceptable long-term sacrifice for safety (like reduced occupancy limits) and an unacceptable form of government overreach (such as indefinite government surveillance) lies the smartphone. Public health officials know that our phones collect valuable data that can help them track and monitor the spread of a virus. And companies have made apps, such as the ones that monitor body temperature, that could help the authorities make wise decisions about quarantines and other restrictions intended to flatten the curve and save our health care system from being overloaded.
The technology sounds great—unless you’ve read almost any science fiction novel about a future dystopia. Mark Zuckerberg and Jeff Bezos and Christopher Wray and Guccifer 2.0 probably all already know too much about my damn life. Why would I give that information to a public health Skynet as well?
I recently did a coronavirus law webinar with Slate during which Vox’s Ian Millhiser proposed a good solution for our emergency laws: sunset provisions. Any measure we enact or require as part of our coronavirus response must come with a mandatory provision stating that the law will lapse after a fixed period—no extensions, no reauthorizations, and no subjective determination of when the emergency has passed. Once the law ceases to exist, if we still want to keep it, Congress should have to go through the process of writing a whole new bill under nonemergency conditions, not merely change the name of an old bill and try to pass it off as new.
I’d add that this provision should apply to anything we’re asked to download as well. I want something like the technology from the old Mission: Impossible television show: “This app, if you choose to accept it, will self-destruct in two weeks.”