The price of privacy in a post-9/11 world

As Americans reflect on the 12th anniversary of the 9/11 terrorist attacks, the debate continues about the proper balance of privacy rights and security concerns needed in an asymmetrical world.

Pentagon_Memorial_9.11The term “asymmetrical” wasn’t used a lot before September 11, 2001, when the terrorist attacks on New York and Washington, D.C. changed American domestic and foreign policy forever.

But the fallout from these incidents has resulted in an ongoing public debate, which in fact started in the days right after after 9/11, about how much the government needs to intrude into citizens’ lives to protect them from unseen harm.

The American Civil Liberties Union has been an active voice in opposing provisions of the Patriot Act since 2003.

Public polling data from the past 12 years shows that support for privacy restrictions has eroded somewhat, especially after the recent revelations about the extent of NSA surveillance. But many Americans continue to accept some government surveillance as a price they will pay to forestall more terrorist attacks.

According to data from Pew, in 2001 about 55 percent of Americans believed it was necessary to give up some civil liberties to curb terrorism; by 2011 that number fell to 40 percent.

But Pew also said in 2010 that 47 percent of Americans said they were concerned government policies “have not gone far enough to adequately protect the country.” And in an AP poll released this week, about 6 in 10 Americans said it is sometimes necessary to sacrifice rights to confront terrorism.

Today, the public debate centers on the legality of government actions under the Foreign Intelligence Surveillance Act. FISA and the secret court that settles conflicts related to it date back to the 1970s, and there were certainly privacy controversies about FISA before 2001.

And the basic facts about NSA surveillance were revealed years ago in a series of 2005 and 2006 New York Times articles, so the debates aren’t new.

In the post 9/11 years, the Bush and Obama administrations and Congress have argued, with success, that actions taken under the Patriot Act are legal, under the constitutional powers granted to the executive and legislative branches.

Those claims are under new challenges not only from the ACLU, but from journalists who have strong First Amendment concerns about government efforts to punish people who reveal government secrets to the press.

The debate over that point also extends well before the 9/11 era, as the chief figure behind the Pentagon Papers, Daniel Ellsberg, stated recently as he made his support for Edward Snowden and Bradley Manning clear.

But what shouldn’t be forgotten is that fact that we can have a robust debate, on sensitive issues like government surveillance, 12 years after the 9/11 attacks.

In many other nations, free speech and public debate on the Internet, and now on mobile networks, are a rarity.

A 2012 report from Freedom House showed that among 47 major nations it surveyed, about 28 percent blocked or censored Internet access. It also said 19 of 47 countries, about 40 percent, had laws that restricted online free speech or presented privacy issues.

And in 26 of the 47 countries, bloggers have been arrested for making political comments.

The most-restrictive countries were China, Saudi Arabia, Cuba, Iran, Vietnam, Ethiopia, Burma, and Pakistan.

In the big picture, one could argue that our constitutional strengths have never been more focused as the privacy debates continue today about acronym agencies like the NSA, FISA, FISC and even the CIA.

The sociologist and commentator Amatai Etzioni wrote about these tradeoffs about a decade ago for The Communitarian Network, a project he overseas at George Washington University, and he pointed to an even older debate about the issue.

“Accountability is ultimately a matter of trust. Plato is said to have raised the issue in asking, ‘who will guard the guardians,or, as it is put in Latin, quis custodiet ipsos custodes? Others attribute the question to the Roman satirist Juvenal, who wrote around 2000 years ago,” he said.

“I suggest that one best ignores both claims by public authorities that no strengthening of accountability is needed and the shrillest civil libertarian outcries that sound as if no one is to be trusted. Instead, one is likely to favor reforms that will enhance accountability, rather than denying public authorities the tools they need to do their work (although not necessarily granting them all those they request) in a world in which new technologies have made their service more difficult and in which the threat to public safety has vastly increased.”

On the 12th anniversary of 9/11, the ability of Americans to act as the guardians of the government is still robust, even though some question the wisdom of government intrusion into our daily lives.

But we can at least look forward to more debates, on these fundamental constitutional issues, about privacy, with the expectation that there is no perfect answer.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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