Individual Privacy vs National Security

Introduction

Since the terrorist attack of 9/11, America has been in a high level conflict with terrorist around the world, particularly the group known as Al Qaeda. There has been many discussions within the U.S. Congress about the measures of how to effectively combat this organization and their members, here and abroad. Consequently, the issue of individual privacy vs. national security has generated discussions within the civilian and government sectors. To date, the discussions continues with many private citizens who feels they are constantly losing their privacy , when will it end, and how long will it continue.

In this report, it will discuss where privacy issues began and where the public see individual privacy vs. national security come together in its most recent society.

Do the public succumb to total governmental control, or do they propose continued debate in the nation’s process of the national security process. There are always two sides of a story, the pros and cons, the laurels and pitfalls, or the good and the bad, and for the public, it has to decide which side in each of these is the right side it feels is the best possible side to be on.

One hand, national security is decided by the government to protect its citizens, by the measures it puts into place it feels is necessary, and what duration these measures will be in effect. On the other hand, the level of security and safety is set without discrimination to all.

This results in the dilemma of the battle between individual privacy versus national security issues, that are essential to the individual, the public, and government.

The Claim: What privacy should an individual lose to protect against terrorist because It gives society a level of feeling protected by the protections in place. The public can only maintain a limit of safety by giving up a degree of privacy to governmental agencies in order to protect this basic need; and it is a trade off to give up a certain amount of privacy, but not complete privacy.

Justification of Claim:

The justification of the claim is that it is prudent and the right of the public to debate the process of privacy, which the public has come to rely on for many years. Even though limited under the constitution, privacy rights and national security is important to the country’s citizens on all levels of government. The Bill of Rights is the area where citizens’ rights are specified, and over the years of war, and specifically after 9/11, citizens have seen and felt an erosion of their rights. Constitutional protections of individual rights not expressed specifically by the Bill of Rights is being at best controversial, (Linder 2012a). Many originalists, including most famously Judge Robert Bork in his ill-fated Supreme Court confirmation hearings, have argued that no such general right of privacy exists.

The Supreme Court, however, beginning as early as 1923 and continuing through its recent decisions, has broadly read the “liberty” guarantee of the Fourteenth Amendment to guarantee a fairly broad right of privacy that has come to encompass decisions about child rearing, procreation, marriage, and termination of medical treatment. Polls show most Americans support this broader reading of the Constitution, (Linder 2012b). Looking forward under this decision, each citizen relies on its government to maintain a fair level of protection and security as well as maintaining a balanced level of privacy. The justification for this claim shows how the rights of individuals is a must, within the American society, compared to the national security of the country’s territory and a balanced approach it must give to its people within previous rulings.

Individual Privacy vs. National Security

After 9/11 a set of laws was set in place to protect us from Terrorism and terrorist attacks and placed under a new governmental act called the Patriot Act. With the past occurrences of 9/11, with the airlines planes crashing into the twin towers in New York City, and the Pentagon, it was not hard to convince the public this action was not needed. The residing administration presented stacks of follow-up attacks to Congress from experts and officials on a daily basis with grim pictures or scenarios of possible attacks on nuclear facilities, schools, shopping centers, and others alike, that the public saw measures in place as acceptable and adequate, (Downing 2008a). Downing further states; Americans have seen their privacy and other rights curtailed in previous wars but the present-day privations are unfounded only in the duration of these rights. Just how long will the duration of war on terrorism and rights last, it has already lasted longer than any other US wars.

Further sources of concern to the public, are the rich array of devices and techniques of the government, such as improved computer programs, databases, and surveillance gear, never before used in previous wars and never devoted as resources to any state or its partners. What if any remedies are there in the political system in the privacy of individuals versus national security protections and concerns? The courts have narrowed away some of the concerns, but the bulk of these powers, many of them are still persisting. Congress has been hesitant to amend passing the Patriot Act and its follow-ups, due to fear of being labeled unpatriotic, but also for fear of being blamed for further terror attacks. So far, no president or presidential candidate will probably seek to curb the purview of the Committee on the public safety, nor hardly mention future changes. Privacy, like its colleague individualism, has been in decline anyway ”“ putting up only token resistance here and there against mass society, a corporate-based economy, and relentless bureaucratization.

So perhaps the war on terror requires us to bid a fond adieu to privacy and send it off to government bureaus for safekeeping. They broke it, it’s theirs (Downing, 2008b) According to laws enacted by the government after recent terrorist activities, it has the right to eavesdrop on telephone communications, monitor online communications of suspects, and incorporate surveillance on anyone it feels is a threat. With recent attacks upon American soil and the loss of thousands of lives, law enforcement agencies have asked for broader and pervasive laws to counter security challenges. Some have asked if these changes will impact the privacy of its citizens, and indeed over the years, history has shown the rights and liberties of citizens have been curtailed and in some instances revoked completely. One example, during World War II 120,000 Japanese Americans were forced into internment camps.

Nowhere in the U.S. Constitution is there a harmonization-of-laws guarantee, by definition (An adjustment of differences and inconsistencies among the difference of measurements, methods, procedures, schedules, specifications, or systems to make them uniformed to or mutually compatible with). In 1803 Chief John Marshall said in his opinion Marbury v. Madison, the Supreme Court is the final arbiter of “what the law is.” 2003 Tracy Mitrano Marshall also stated, that settling the duties of inconsistencies, disharmonizations, and contradictions falls to the duties of the Court, which in its practices, means that many such problems may go unaddressed for years and some of the controversies may never be resolved. Complications and constitutionally are thought of as checks and balances, and the cost of checks and balances systems are weighed in confusion and consternation and capricious that have the appearance of resolving conflicts once and for all. Before we go deeper into the analysis of the legislation, let’s examine the following terms of privacy and security.

The American Heritage Dictionary defines privacy as secluded from sight, presence or intrusions of others, confined to one person. There are those who have pointed out that nowhere in the constitution the word privacy appears. The word security comes from the Latin word Securus, meaning carefree. Definitions of security begin with freedom from danger, risk, harm, etc. No matter what measures are taken to assert security, no one should think the outcome would mean complete freedom. Notice how the definition of the word security, implies that its function is as the means to quality, freedom, no less and not as an end to itself, as balance is the key. The American history provides us a variety of examples of how that balance has shifted over time. The Alien and Sedition Acts of the 1790s were the first example of a federal law believed to have thrown off the balance in favor of security over civil liberties, designed to silence and weaken the Democratic-Republican Party by the Federal Party. To protect the new United States from an antagonistic French Revolutionary government as legal devices over the Naturalization Act, that actually backfired, ensuring the Revolution of the 1800’s to expire.

This episode stands as a lesson of federal legislative overreach-political impulses of legislation touted as patriotic and necessary for national security, and the dissolving of the Federal Party. The internment of the Japanese, remains the opposite of Roosevelt’s emergency measures, which were the most shameful of all mistaken emergency legislative measures. As in each case of emergency legislation that protects national security, it also curbs civil liberties and must be interpreted in context of a very complex history. Acts and organizations such as FERPA, HIPAA, and FSMA shares the purpose of preserving the privacy of records in keeping with the foundational tenents of fair-information practices. These fair-information practices are as such are transparency, relevancy, the ability to correct records, institutional obligations to maintain records of disclosures and provide notice to subjects, and finally, the security of those records.

Dealing with paper records years ago, under FERPA regulations, colleges and universities now are struggling with the task of bringing electronic security up to the same level of confidentiality and availability. Due to the creation of IT security programs-which include policies, procedures, guidelines, risk assessment, and education/training-corresponds to new legal developments such as FMSA and HIPAA, which raises the specter of liability, legal requirements should also come as an encouragement for IT professionals. Intrusion-detection and -response plans require leadership, articulated practices, enforcement polices, and education within the campus communities, all of which relevant hardware and software as well as highly trained personnel to address these matters adequately and professionally.

Sharing-of-information legislation, under national security, such as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA- Patriot Act) and the Homeland Security Act pulls in a direction contrary to privacy legislation. It is the longest piece of legislation of emergency legislation, well over a hundred pages, passed in the shortest time period, in all American history. It comes with three overall goals: (1) to enhance government to government information sharing (by lifting regulations that had monitored law enforcement relations between federal, state and local authorities, (2) to allow government surveillance and encourage private entities to share information with the government (by alleviating legal liability); and (3) create and expand existing criminal law design to fight terrorism (by adding specific provisions and expanding the definition and powers of existing legislation. So vast is the reorganization of the federal government under this act , the implications have yet to be spelled out.

But there are two are already along with, the Student and Exchange Visitor Information System (SEVIS) program, which requires every college and university to report, abuses and fraud crimes, specifically allowing the death penalty for any abuse, (i.e. hacking) that results in serious physical injury or death. The second is the goal of the USA-Patriot Act-government surveillance and these two aspects of the Homeland Security Act have the most direct impact on scholarship and research, libraries, and IT resources in higher education. (Tracy Mitrano, 2003) Further in notations of privacy and national security, (Bajaj and Austen 28 Sep 2010) report, the United States and law enforcement and security agencies have raised concerns with new proposals electronic powers to track terrorist and criminals and unscramble their encrypted messages through e-mail and other digital communications. Officials from India have also stated they will seek greater access to encrypted data sent over popular Internet sources such as Gmail, Skype and other sources such as private networks that allow users to bypass traditional phone line links or logging in to remote corporate computer systems.

Some have said that India’s campaign to monitor data transmissions within their borders may hurt other important national security goals: by attracting other global businesses and becoming a hub for technology innovations. In another report by, (Kandra, Anne; Brandt, Andrew; Aquino, Grace Jan 2002) Federal legislation passed in October gave investigators more tools for apprehending terrorists. Proponents of the law said it was needed to protect ourselves. Opponents said it will threaten our constitutional rights. But whatever position you take on these issues, it is important to know how the new laws will affect everyone’s lives online. They continue to report, the Patriot Act is complex and powerful, and it also broadens the definition of terrorism and increases the penalties for the crime of terrorism. Some of the more drastic changes in the law involve electronic surveillance. The act allows federal investigators to implement more powerful tools to monitor phone calls, email messages, and even Web surfing. What are the implications of this new type of surveillance for your Internet privacy? It is difficult to say exactly.

The Patriot Act is vague on many key points, and understandably, law enforcement officials are not eager to show details about tools like the controversial Internet surveillance system, DCS1000 (and more commonly recognized by its previous name, Carnivore). “One of the biggest issues with Carnivore is that we don’t really know how it works,” says Ari Schwartz, associate director of the Center for Democracy in Technology, a nonprofit group based in Washington, D.C., that focuses on preserving privacy and civil liberties on the Internet. What are the implications of this new type of surveillance for your Internet privacy? It is difficult to say exactly. The Patriot Act is vague on many key points, and understandably, law enforcement officials are not eager to show details about tools like the controversial Internet surveillance system, DCS1000 (and more commonly recognized by its previous name, Carnivore).

“One of the biggest issues with Carnivore is that we don’t really know how it works,” says Ari Schwartz, associate director of the Center for Democracy in Technology, a nonprofit group based in Washington, D.C., that focuses on preserving privacy and civil liberties on the Internet. It is probably a fair assessment to say that joking when sending an e-mail about planting a bomb is not very good idea these days, and researching biological terror techniques over the Internet is not conceivably a good idea which would also draw suspicion. (Kandra et al., Jan 2002) Under the Patriot Act Amendments, the FERPA Act has a health and safety exception. It is well known to students and administrators, who invoke it to look at a student’s record in the case where a student is missing and police hopes to find clues to the student’s disappearance from their e-mail. The Patriot Act added a new terrorism exception design to protect the health and safety of everyone else. It is worth noting the broad definition of domestic terrorism, meaning activities that involve dangerous acts of human life, that are in violation of the criminal laws of the United States or any state, that appear to be intended to intimidate or coerce a civilian population or individuals, influence the policy of a government by intimidation or coercion , or affect the conduct of a government by mass destruction, assassination, or kidnapping and occur primarily within the United States.

Within the principal of the Homeland Security act, its job is to reorganize a significant amount of the federal law enforcement and immigration and naturalization bureaucracy under the roof of one central agency, which grew out of concern that compartmentalization federal intelligence and law enforcement structures did not permit adequate study and intelligence and warning. The Homeland Security Act has already had a noticeable impact on immigration. The Student and Exchange Visitor Information System (SEVIS) a mandatory government issued program that tracks the whereabouts of visiting foreign students attending colleges and universities. The concept is nothing new, as there were widespread disuse of bureaucratic disorganization from within the INS. The Patriot Act echoed the existing INS laws to require mandatory reporting and enforcement, and the Homeland Security Act passed on the baton.

Civil privacy legislation that includes security legislation such as FERPA, HIPAA, and FSMA should be the rule. National security information sharing and anti-terrorist legislation, such as the USA-PATRIOT Act and the Homeland Security Act—should be the exception. With the USA-PATRIOT Act divergence from traditional constitutional standards, there have been many people who are concerned that the exceptions may soon swallow the rule. Tensions between these two types of legislations speaks to the more general concern of the American society at large, about a reduction of privacy overall, whether caused by changes in the law, in social norms, or in the very nature of information technologies. Even today with new technology its task has grown and evolved in recent years, and over the past three decades, the challenges have grown to protect individual and personal privacy, and to curb privacy violations. In general, several surveys and polls that were taken seem to suggest that the public feels there has been a loss of privacy and intrusions and the backdrop behind these new proposals could potentially impact privacy and civil liberties on a greater scale.

Analysis from an ethics point of view, there are major concerns under national debate on tensions between privacy and security. Below are the following measures of security being proposed and public, personal and privacy issues under consideration. 1. Stricter security measures at airports, ports, points of interest in the U.S., and gathering places such as stadiums, and other large mass venue, (A) Extensive checks of baggage, personal searches and vehicles, (B) Intensive custom and immigration checks, (C) Restrictions within airport areas and certain public places, (D) Additional spot searches and personal property checks in key public areas, (E) Increased surveillance and monitoring of movements in key public areas.

2. Detailed, accurate identification and verification of identities and background,. (A) Mandatory issuance of national identity cards for all people, (B) Increase use of facial profiling systems for assessment of potential suspects. 3. Increased surveillance of all communities. (A) Monitoring via Internet (‘Carnivore’}wireless, wire-lines, satellite, etc., (B) Broader wiretapping powers, (C) Broader (and possible indefinite) detention, arrest, and asset seizure powers, (D) Authority for blanket searches, secret searches, (E) Website activity monitoring and data collection, (F) Access to personal and business records of all kinds. 4. Tighter immigration laws to screen immigrants/visitors more thoroughly, (A) More thorough screening of credentials and backgrounds of visa applicants, (B) Tracking of movements of immigrants and other visiting foreign nationals through databases. (Krishnamurthy, 2001a) CRITERIA FOR ETHICAL DECISION-MAKING: (See additional charts posted below by Krishnamurthy).

POSSIBLE ACTIONS

The proposed increases in security measures may be beneficial for the good of everyone if implemented in an impartial manner regardless to race, ethnicity, religion. Accountability and transparency in law enforcement procedures, especially on privacy issues must continue to be preserved, despite recent attacks. The judicial system must be empowered to deal effectively with all abuses of proposed security measures with regards to protecting the constitutional rights and liberties of all its citizens. It must also ensure anyone accused has adequate legal representation and a fair chance to prove their innocence. Ensure that the current atmosphere of rich ethnic and cultural diversity environment of the country with one another is not compromised.

1. Assess that this is a real and tangible problem we are facing.
2. If so, can it be handled without impacting/violating privacy at all.
3. If not, can it be handled by making it as less intrusive as possible. There are possibilities that additional lengthy investments for public infrastructure needed to be made nationwide to expand capability of existing systems or newly incorporated systems to handle the challenges. 5. VIRTUES APPROACH GOALS:

A focus on individual development of virtues
A thoughtful reflection on self-realization of human potential The developing virtuous habits and attitudes leading to ethical action throughout the communities.

POSSIBLE ACTIONS

An assessment of whether the proposed measures will reinforce positive virtues we hold important, such as our patriotism, self-sacrifice, compassion, patience and courage, or whether these options could harbor destructive traits leading to religious intolerance, less compassion, racism, fear, and suspicion. To impress upon more awareness through debates and discussions across the nation to distinguish religion from universal human values of peaceful co-existence, mutual respect, and non-violence, and human dignity. To focus on cultivating tolerance, compassion and patience (Krishnamurthy, 2001c).

The following abstract articles shows and or explains further privacy and security issues since the terrorism of 9/11/2001 put in place as part of measures private citizens may need to become accustomed to in their part of loss of privacy rights in their security of national security. Security and Privacy After September 11: The Health Care Example Abstract:

The following article examines the collaboration between privacy and security in relations to the medical rule, issued in 2000 under the Health Insurance Portability and Accountability Act (HIPAA). Studies shows that the HIPAA stands up well to concerns of post 9/11 era. Affairs about public safety are met by current provisions that permit revelations to protect national security, to react to emergency situations, and to respond to law enforcement investigations. The article examines in particular detail the envisioned Model State Emergency Health Powers Act, sketched in the wake of the 2001 anthrax attacks.

It has been argued by Professors Lawrence Gostin and James Hodge that this Act is justified by a new “model of information sharing” for medical information purposes. This article concludes that public health concerns are suitably addressed by the existing HIPAA rule, and that a “model of information sharing” sends completely the wrong signal about how the health system will handle issues of data privacy and security. More generally, the article investigates positions of “security vs. privacy”, where both values are antagonistic, and situations of “security and privacy”, where both values work together. (Swire and Steinfeld January 22, 2003) Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America Abstract:

This abstract article discusses, in the tradition of research on political tolerance and democratic rights in context, this analysis uses a national survey of Americans directed shortly after the September 11, 2001 attack on America to study people’s eagerness to trade off civil liberties for grander personal safety and security. We find that the bigger people’s perception of threat, the lower their endorsement for civil liberties. This effect interrelates, however, with trust in government. The lower people’s trust in government, the less willing they will agree for a trade off of civil liberties for security, regardless of their perceptions of threat. It is known that African Americans are much less likely or willing to trade civil liberties for security than their counterparts of whites or Latinos, even with other circumstances taken into account.

This may be their long-standing commitment of their struggles for human and civil rights. In matters of party issues, liberals may be less likely to trade off civil liberties than moderates or conservatives, but liberals tend to converge toward the position taken by conservatives when their sense of the threat of terrorism becomes high. While this is not a projection of the future, the results suggest that Americans’ commitment to democratic values is greatly dependent on other concerns and that the context of a wide-ranging threat to national or personal security can provoke a considerable readiness to give up rights. (Davis & Silver, 2003) Mobile cameras as new technologies of surveillance? How citizens experience the use of mobile cameras in public nightscapes

Abstract:

In surveillance studies using mobile camera technologies in public nightscapes, terms such as sousveillance and inverse surveillance define forms of surveillance that have a bottom-up and democratic character. On the other hand, in this paper this democratic notion is queried by looking into procedures and occurrences with both Closed Circuit Television (CCTV) and mobile cameras by Dutch citizens. By superseding in the nightlife district of the Rotterdami city centre, data has been collected on both mobile and CCTV camera confrontations.

From this, an investigation is made into how mobile cameras are practiced in the Nightlife landscape. Comparing these practices with CCTV provides understanding into new surveillance issues that come into view due to the mobile camera. Analyzing surveillance technologies, provides prospective as hybrid groups, that may take different shapes in different places, and allows for involvements that attempts to improve our perception of current changes in the surveillance technology landscape. (Timan & Oudshoorn, 2012)

The Spy in the Cab: The Use and Abuse of Taxicab Cameras in San Francisco Abstract:

Since 2003 security cameras were required in San Francisco taxicabs. Their story has come to contain many features that are familiar to surveillance examinations. Their acceptability is explored of the trajectory using the concept of surveillance slack, and the stages and tensions where the line of use and abuse is has been drawn. The effectiveness of what the cameras are perceived to be doing, the integration of its use, and how the slackness or tautness of surveillance interacts in tension and conflicts. Since its first introduction, the new technology initial reaction was met with moral panic. This is just another element of privacy intrusion in the name of national security, the public now must adapt to. (Anderson, 2012)

These abstracts are the several indications of elements put into place after the 9/11 Terrorist attacks in 2001. Privacy rights have eroded over the years since, by the US Government claims to protect its citizens. From cameras, in inconspicuous places, wire-tapping, and monitoring e-mail, and social sites, these are just a few of the acts we are controlled under. Needless to say, we may never see these laws or acts diminish anytime soon, so it is better to adjust now, and band together before further intrusions are brought upon society.

My assessment of the information taken from this report is that the privacy rights we hold as individuals within the country are vague, although most Americans seem to think their rights are guaranteed by the U.S. Constitution . Although under the 14th Amendment a certain amount of rights has been guaranteed, even these rights can be limited by the powers of the U.S. Government, especially during a time of war, or other emerging acts. When you look at the broad powers of war, emergency acts, and even the powers that exists of the U.S. Congress, we can assume any privacy we hold true is basically up to the representatives we elect to represent us. We as a people of the republic come together when there are disasters, and acts of terror, and differs on many policies of the day, but what we have as collected group is the power of vote, and this power is what we can use to help balance the power of our existing government.

The research of this paper was conducted using various sites concerning a combination of privacy of individual citizens, versus the introduction of laws enacted by the US Government, since the terror attack of 9/11/2001. Taking in all the information collected, and analyzed, this report has been intended to show the privacy each citizen held before and after the attack. It comprised what the public has perceived as a given right, over what was actually allowed by law.

Conclusion

The Claim: What privacy rights should an individual lose to protect against terrorists? It gives society a level of feeling safe by the protections in place. The public can only maintain a limit of safety by giving up a degree of privacy to governmental agencies in order to protect this basic need; and it is a trade off to give up a certain amount of privacy.

On one hand individual privacy seems to be an inherent right thought of by the public as a Constitutional right. On the other, it is limited rights given by the 14th Amendment. Whatever rights we hold true today is the norm, yet not all true rights we bear are in real existence. What remedies in the political system in the privacy of individual privacies versus national security protections and concerns? The courts have narrowed away some of these concerns, but the bulk of the powers still exists. Even though Congress has been hesitant to amend the Patriot Act, in fear of being too intrusive, the powers to be are that it has the power to limit the society’s individual rights. Throughout the years rights have been in decline, and we wonder whether it will be because of terrorist acts, the U.S. Patriot Act, or the Homeland Security Act, it is something we all will have to get accustomed to.

References
(Anderson, 2012) Surveillance & Society, ISSN 1477-7487 © Surveillance Studies Network, Retrieved from http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/cab_spy Bajaj, V. And Austen, I. (28 Sep 2010) B1 New York Times, Privacy vs. National Security: [Business/Financial Desk]
http://search.proquest.com.proxy-library.ashford.edu/docview/755073818/fulltext/13AA4752BA6755D6A1B/1?accountid=32521 Darren W. Davis, Brian D. Silver, (12 DEC 2003) American Journal Of Political Science, Retrieved from http://onlinelibrary.wiley.com/doi/10.1111/j.0092-5853.2004.00054.x/abstract Downing, B. M. (2008, August 26th) The Agonist Retrieved from http://agonist.org/national_security_versus_individual_privacy_no_line/ (Kandra et al., Jan 2002): 37-41PC World 20. 1National security vs. online privacy http://search.proquest.com.proxy-library.ashford.edu/docview/231422330/fulltext/13AA49614672EB98EE2/3?accountid=32521 Krishnamurthy, B. (Posted 11/01/01) Website. Markkula Center for Applied Ethics Retrieved from http://www.scu.edu/ethics/publications/briefings/privacy.html Linder, D. (2012). Exploring constitutional law. Informally published manuscript, educational, non-commercial site, umkc.edu, Kansas City, United States. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/home.html Miltrano, T. (January 1, 2003) Web Page title. EDUCAUSEREVIEW ONLINE Retrieved from http://www.educause.edu/ero/article/civil-privacy-and-national-security-legislation-three-dimensional-view Swire, Peter P. and Steinfeld, Lauren, Security and Privacy After September 11: The Health Care Example. Minnesota Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=347322 (Timan & Oudshoorn, 2012) Surveillance & Society, ISSN 1477-7487 © Surveillance Studies Network, 2012 Retrieved from http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/mobiles

Downing, (2008a) and (2008b)
Krishnamurthy, (2001a), (2001b) and (2001c)
Linder, (2012a) and (2012b)