Computers, Privacy & the Constitution
Under Attack

After the events of September 11, 2001, which marked one of the largest terrorist attacks on United States soil in the country’s history, it took Congress a mere six weeks to muster a legislative response. The result was the PATRIOT Act, a bill that substantially expanded the government's authority to engage in surveillance activities over US citizens, particularly in regards to searches, wiretaps and other intelligence and law enforcement activities. This phenomenon was not limited to the United States, however; in 2012, the BBC announced that the UK government was also launching a new legislative response to crime and terrorism. The British initiative would take the fight to cyberspace and grant the government the authority to monitor the calls, emails, texts and website visits of UK citizens. In the United States, such legislation would arguably have to contend with the provisions of the the Fourth Amendment, which protects Americans from unreasonable searches and seizures. It not unfathomable, however, given the the broad expanse of the PATRIOT Act, that US citizens will one day have to grapple with a similar initiative. In the face of such a possibility, how can we as American citizens remain, as terrorism scholar Bruce Ackerman bids us, “secure and free”?


Many terrorism experts observe that, several years after 9/11, western nations remain vulnerable to attack. In addition to being potentially more deadly and possibly involving nuclear and biological elements, future terrorist events, particularly if successful, present a real threat to the social, political and economic stability of the targeted government(s). Thus, not only must these governments protect their citizens from such occurrences, but they must also be seen to be doing so in order to maintain the confidence of the public. The practical result of these facts means that governments will take some measures to prevent future attacks; inevitably, several of these efforts will include exploiting the law enforcement opportunities presented by the Internet.


It is also the case, on the other hand, that the continued existence of American society also rests on its ability to remain free. Philip Bobbitt observes that a nation that is physically safe, but stripped of its basic freedoms would debatably be as crippled by terrorism as one under physical attack. Indeed, it is perhaps not so much whether the country can be secure and free as that, in order to win the "war on terrorism," it must be both. Traditionally, American freedoms have included rights such as that to peaceably assemble and for people to be secure “in their persons, houses, papers and effects against unreasonable searches and seizures.” The increasing relevance of the online activity in the 21st century, however, has meant that many important modern activities, including the exercise of some traditional rights, now take place in the new arena of the Internet. So extensive is this spillover of American life into cyberspace that true freedom cannot be maintained without meaningful protection of the activities that occur in this realm.

Secure and Free

Legislation such as that introduced by the UK does arguably strengthen security. Although it expands the intelligence- gathering powers of law enforcement, however, it also substantially invades privacy as it pertains to Internet activity. The BBC reported that the UK legislation would, for instance, allow officers to obtain information on a website that an individual has visited.To further this goal, Internet companies will have to install special software that would allow the UK government to obtain, in real time, electronic communications without a warrant.

In the United States, the Fourth Amendment protects US citizens from such activity as it would occur in the real world outside of cyberspace. As noted by Professor Eben Moglen, the historical context that gave birth to the Fourth Amendment differs substantially, however, from the modern environment. Whereas the amendment may have originally been construed to apply to the physicality of an individual's home, much of a modern person's personal information and activity can, and usually does, exist in cyberspace. Simply limiting the protections of the Fourth Amendment to the physical home of the individual will, therefore, undoubtedly leave a great deal of the average American's life vulnerable to governmental intrusion.

In order to maintain a balance between security and freedom, anti-terrorism legislation that is geared toward cyberspace activity should be careful to observe basic Fourth Amendment principles. In the above UK example, the lack of a warrant requirement is perhaps the most troubling aspects of the legislation as warrants traditionally ensure that there is some check on the powers of law enforcement and some mechanism to ensure that their powers are only used where necessary. Like the civil libertarian groups that opposed the Patriot Act, some UK observers have suggested that the UK legislation represents an unwarranted extension of government authority that will not only affect suspected terrorists and criminals, but regular citizens.

The renewal of the Patriot Act by the Obama administration without much public fanfare, however, suggests that the root of the problem is not limited to cyberspace. It appears that Americans as a people have arguably become more willing to sacrifice government encroachment even on the more traditional realm of the fourth amendment-- a man's "castle." In order to ensure that our activities are protected in cyberspace, we must not only act to consciously expand the breadth of the Fourth Amendment to include Internet activity, but also resist efforts that erode the freedoms that we already possess in real life.


Of course, there has to be a balance between security and freedom. Perhaps it is natural that in our instinctive desire to promote security, we have traded in some of our freedoms. We must remember, however, that even the most tenacious hold onto security will be in vain if the society that we have fought to preserve is one that we no longer recognize.


Webs Webs

r4 - 14 Jan 2015 - 22:44:39 - IanSullivan
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