Markkula Center of Applied Ethics

Privacy vs. Security in the Aftermath
of the September 11 Terrorist Attacks

By Bharath Krishnamurthy, Research Assistant
Markkula Center for Applied Ethics, Santa Clara University (Posted 11/01/01)

ISSUE: Recent terrorist attacks on U.S. soil have resulted in the tragic loss of thousands of innocent human lives. In response, law enforcement agencies are requesting broader and more pervasive laws to counter this security challenge. Will freedom, privacy, and other values be compromised by these proposed changes? CONTEXT: Throughout history, whenever there have been national emergencies, the rights and civil liberties of the public have been curtailed, and in many instances revoked completely. For example, approximately 120,000 Japanese Americans were forcibly evacuated and interned in camps during World War II (Source: ACLU Press Release (06/13/01) at http://www.aclu.org/news/2001/n061301a.html). As technology has grown in leaps and bounds over the last three decades, it has also brought with it new challenges to protecting people's privacy and curbing privacy violations. In general, several surveys and polls seem to indicate that the public feels an increased sense of intrusion and loss of privacy (Source: BSR report on privacy (1999) http://www.bsr.org). Against this backdrop, the new proposed measures could potentially impact privacy and civil liberties significantly. This paper analyzes from an ethics perspective, some of the major issues under national debate concerning tensions between privacy and security.BEST WEB RESOURCESMAJOR OPTIONS UNDER CONSIDERATION

  1. Tighter security and safety measures at airports, ports, and all points of entry into U.S., as well as at large gathering places such as stadiums, concert venues, etc.

  • Extensive baggage, vehicle, and personal searches of travelers

  • Intensive immigration and customs checks, and consolidating different databases

  • Restricted entry beyond certain points in airports and other public places

  • More spot searches and personal property checks at key public places

  • Increased surveillance and monitoring of all key public places

  1. More accurate identification and verification of identities and backgrounds
  • Mandatory national identity cards for all people
  • Increased use of facial profiling systems for picking potential suspects
  1. Increased surveillance of all communications
  • Monitoring via Internet ('Carnivore'), wireless, wire-lines, satellite, etc.
  • Broader wire-tapping powers
  • Broader (and possibly indefinite) detention, arrest, and asset seizure powers
  • Authority for blanket searches, secret searches
  • Web-site activity monitoring and data collection
  • Access to personal and business records of all kinds
  1. Tighter immigration laws to screen immigrants/visitors more thoroughly
  • More thorough screening of credentials and backgrounds of visa applicants
  • Tracking of movements of immigrants and other visiting foreign nationals through databases

CRITERIA FOR ETHICAL DECISION-MAKING For more detailed information on this framework, please visit the following web-sites:
A Framework for Ethical Decision Making,
Thinking Ethically

  1. UTILITARIAN APPROACH
  2. RIGHTS APPROACH
  3. FAIRNESS OR JUSTICE APPROACH
  4. COMMON-GOOD APPROACH
  5. VIRTUES APPROACH

1. UTILITARIAN APPROACH GOALS: Choose actions that have the most benefits and least harm on people

ACTIONS/OPTIONS

WHO ARE AFFECTED

BENEFITS

HARM

(1) Tighter security

All travelers and general public

  • Reduces obvious threats and risks.

  • Can prove a deterrent

  • Major inconveniences for the public due to longer time delays.

  • Intrusiveness leading to loss of privacy (due to constant monitoring, spot searches, etc.

(2) More accurate identification systems

All travelers and general public

(3) Increased surveillance of communications

All those who use phones, faxes, email, and Internet for their communications

  • Could reveal plans of suspects proactively to provide advance warning

  • Possibility of virtually all personal/public communications being subject to monitoring.

  • Access to personal and business records without need to show evidence of crime (Source: ACLU Release (10/05/01): http://www.aclu.org/news/2001/n100501a.html)

  • Possibility of sharing of sensitive private information between several agencies with no safeguards to their future use.

  • Very broad and sweeping provisions as regards searches of personal property and information

(4) Tighter Immigration Laws

Immigrants of all nationalities

  • Better background checks before entering the country reduces chances of threat

  • Indefinite detention provision is a crucial setback to non-citizens. (Source: ACLU Release (10/05/01): http://www.aclu.org/news/2001/n100501a.html)

  • Could generate anti-immigrant/foreigner prejudices in all areas of society

  • Economic impact - Loss of skilled foreign talent

2. RIGHTS APPROACH GOALS :Protecting human rights, dignity, and individual freedom of choice

RIGHT AFFECTED

IMPACT ON RIGHTS

1. Right of Privacy

  • Possible violation of constitutional rights (4th amendment) if made permanent law instead of being just an emergency provision.

  • Privacy definitely compromised due to intrusive searches, and intensive surveillance of all communications, access to personal records, and secret searches.

  • Potential for abuse and vague, sweeping provisions on acts not-related to terrorism at all (e.g., low-level hacking/computer crimes) (Source: EFF Action Alert (09/27/01): http://www.eff.org/alerts/20010927_eff_wiretap_alert.html)

  • These measures could become permanent fixtures in our society introducing loss of other civil liberties and constitutional rights by enforcing conformity. (Sunset provisions need to be drawn up to reassess these emergency powers after 2 years.)

2. Right not to be injured

  • Profiling of groups/sections could lead to innocent, law-abiding citizens being persecuted and wrongfully detained with minimal judicial safeguards. (Source: ACLU Release (10/05/01): http://www.aclu.org/news/2001/n100501a.html)

  • Could aggravate tensions between communities.

  • However, if these security measures stop such attacks, then this could protect this particular right for all the citizens in the community

3. Right to liberty/freedom in private contracts

  • Impact on businesses forced to implement decisions based on national security (e.g., the airlines industry).

  • Interference with existing contractual/legal agreements between businesses with their customers.

  • Interference with rights of employees under existing employment agreement


3. FAIRNESS OR JUSTICE APPROACHGOALS: Fairness of actions (Protection against any unjust favoritism or discrimination)

OPTIONS/ACTIONS

IMPACT ON FAIRNESS/JUSTICE

(1) Tighter security

    • Security measures may not be impartial, and could become more focused on specific ethnic groups /races/people of color.

(4) Tighter Immigration Laws

    • Affects all immigrants
    • Very minimal judicial safeguards to detainees (especially non-citizens).
    • Students could get targeted more than business visitors or tourist visitors.


4. COMMON-GOOD APPROACHGOALS:

  • Emphasize shared community goals and values
  • Individual good is tightly linked to community common good
  • Focus on development of society and social policies as a whole, in addition to individual goals

POSSIBLE ACTIONS

  • The proposed increases in security measures may be beneficial for the common good if implemented in an impartial manner throughout the community, regardless of race/ religion/ethnicity.
  • Accountability and transparency in law enforcement procedures, especially concerning privacy issues must still be preserved, despite these recent attacks.
  • The judicial system must be empowered to deal effectively with any abuses of proposed security measures to protect the constitutional rights and liberties of all citizens. It should also ensure that anyone accused has adequate legal representation and a fair chance to prove their innocence, even under these circumstances.
  • Ensure that the current atmosphere of rich ethnic and cultural diversity of the country living in peace with one another is not compromised.
  • In one approach suggested by Mr. Etzioni, an expert on privacy-related issues, an optimal balance between personal privacy and the community good must be achieved, with both being given due importance. However, privacy could be limited when it is in the interests of the common good, especially in areas of public safety and public health. The decision-making process could involve asking the following questions:
    1. Is this a real, tangible problem that we are facing?
    2. If it is, can we handle it without impacting/violating privacy at all?
    3. If not, can we handle it by making it as less intrusive as possible?
  • Additional long-term investments in public infrastructure need to be made nation-wide to expand the capabilities of the existing systems or introduce new systems to handle such challenges.


5. VIRTUES APPROACHGOALS:

  • Focus on individual development of virtues
  • Thoughtful reflection on self-realization of our human potential
  • Developing virtuous habits and attitudes leading to ethical actions throughout the community

POSSIBLE ACTIONS

  • Assess whether these proposed measures will reinforce positive virtues that we hold important, such as patriotism, self-sacrifice, compassion, patience, and courage, or whether some of these options could foster destructive traits leading to religious intolerance, lesser compassion, more racism, fearfulness, and suspicious/narrow outlooks.
  • Inculcate more awareness in people (through debates and discussions nation-wide) to distinguish religion from universal human values of non-violence, peaceful coexistence, and mutual respect, and human dignity.
  • Focus on cultivating tolerance, compassion, and patience, starting with our personal lives.



14 Leading Web Resources on Privacy/Freedom Issues

  1. "SPECIAL EPIC ALERT": http://www.epic.org/alert/epic_alert_8.18.html

    (From EPIC (Electronic Privacy Information Center): http://www.epic.org. Contains excerpts from several newspaper editorials (09/24/01). EPIC is a public interest research center in Washington, D.C, established in 1994 to focus public attention on emergent civil liberties issues and to protect privacy, the First Amendment, and constitutional values.)

  2. "SPECIAL EPIC ALERT": http://www.epic.org/alert/epic_alert_8.17.html

    (From EPIC (Electronic Privacy Information Center): http://www.epic.org. Contains excerpts of comments from several legislators (09/17/01))

  3. "ALERT: Hackers Could Get Life in Prison, No Parole, Under "Anti-Terrorism" Bill": http://www.eff.org/alerts/20010927_eff_wiretap_alert.html

    (From EFF (Electronic Frontier Foundation): http://www.eff.org. EFF Action Alert condemning portions of bill, urging people to contact legislators quickly (09/27/01). EFF is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most linked-to Web sites in the world.)

  4. "Proposed Anti-Terrorism Laws Overbroad and Overreaching - All Computer Trespass Treated as Terrorism":

    http://www.eff.org/Privacy/Surveillance/20010926_eff_wiretap_pr.html (From EFF. An EFF Media Release condemning treatment of computer crimes as acts of terrorism (09/26/01))

  5. "After the attack: Privacy vs. safety": http://www.zdnet.com/zdnn/specialreport/0,12737,6021498,00.html

    (From ZDNET.com: http://www.zdnet.com. ZDNET NEWS: SPECIAL REPORT. Contains links to several articles on this issue. ZDNet is a wholly owned subsidiary of CNET Networks, Inc. (NASDAQ: CNET), the global source of technology and commerce-related information, data, exchanges and services for people and businesses.)

  6. "Attacks put privacy into focus": http://www.zdnet.com/zdnn/stories/news/0,4586,2815784,00.html?chkpt=zdnnp1tp02 (A ZDNET News Release: Analyzing how companies are scrambling to update their privacy policies after the attack (10/02/01))

  7. "FTC plans U-turn on privacy law": http://www.zdnet.com/zdnn/stories/news/0,4586,5097801,00.html?chkpt=zdnnp1tp02 (A Reuters News Release on FTC's new stand on privacy legislation (10/03/01))

  8. "Revamped anti-terrorism bill hits House": http://news.cnet.com/news/0-1005-200-7376176.html?tag=hot (From CNET.com: http://www.cnet.com A Reuters News Release outlining provisions of the revised 'PATRIOT' anti-terrorism bill (10/02/01). CNET Networks, Inc. (NASDAQ: CNET), is the global source of information and commerce services for the technology industry.)

  9. "SEARCHING FOR A BALANCE": http://www.pbs.org/newshour/bb/terrorism/july-dec01/civil_liberties.html (From PBS (Public Broadcasting Service): http://www.pbs.org. PBS NewsHour with Jim Lehrer transcript of panel discussion on impact on legislation on civil liberties, privacy, immigration, and security (09/25/01). PBS, headquartered in Alexandria, Virginia, is a private, non-profit media enterprise owned and operated by the nation's 349 public television stations. PBS serves nearly 100 million people each week.)

  10. "ASHCROFT URGES SWIFT PASSAGE OF ANTI-TERRORISM BILL": http://www.pbs.org/newshour/updates/october01/anti-terror_10-3.html (A PBS Online NewsHour Update on Attorney General Ashcroft's comments regarding the bill (10/3/01))

  11. "Protecting Safety and Freedom":

    http://www.aclu.org/action/anti-terrorism107.html. (From ACLU (American Civil Liberties Union): http://www.aclu.org. An ACTION ALERT condemning portions of bill and urging people to contact legislators (10/4/01). The ACLU is the nation's largest public interest law firm. Its mission is to fight civil liberties violations and to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. Founded in 1920, this nonprofit, nonpartisan network has grown to nearly 300,000 members and supporters, with offices in almost every state.)

  12. "ACLU Calls New Senate Terrorism Bill Significantly Worse; Says Long-Term Impact on Freedom Cannot Be Justified":

    http://www.aclu.org/news/2001/n100501a.html (An ACLU News briefing opposing new senate bill (10/5/01))

  13. "Terrorism and Freedom": http://www.free-market.net/features/spotlight/9810.html

    (From: Free-Market.Net: http://www.free-market.net. An in-depth analysis on the Terrorism and Freedom issue. Free-Market.Net - The Freedom Network is a service offered by The Henry Hazlitt Foundation. Its key purpose is to use the Internet to encourage communication, cooperation, and positive action for freedom. It maintains a database of more than 10,000 current freedom-related news stories, books, job openings, action opportunities, events, and other resources.)

  14. http://www.gwu.edu/~ccps/QandA.html (A conversation with Amitai Etzioni, the author of "The Limits of Privacy")