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Issue Date:  November 2, 2007


Remember privacy?

In these post-9/11 days, it's getting harder to find


George Christian never expected to be front-page fodder in The Washington Post, but there was his name in the Nov. 5, 2005, edition, in the first paragraph, no less. Just one problem -- he couldn’t admit to anyone he was the same George Christian in the paper.

“My brother called me from Washington, D.C., and said, ‘Is this you?’ ” Christian recalled. “How many George Christians from Connecticut can there be who work in the library industry? But I had to give him the old shuffle. Anyway, he said he was proud of me.”

-- UPI Newspictures/
Kevin Dietsch

George Christian

Christian, executive director of the Library Connection, a cooperative of 27 libraries in central Connecticut, was under a strict gag order as a result of a National Security Letter, a tool expanded by the USA Patriot Act of 2001 to provide federal investigators warrantless access to phone and Internet data through companies and organizations that provide communication services.

Christian received the letter in July 2005 from two young FBI agents based in New Haven, Conn. The Library Connection shares automated resources for cataloging and circulating materials as well as services such as public Internet access. In the spring of 2005, one patron in one library logged onto a Web site that caught the FBI’s attention. Investigators wanted to know who that patron was.

“I said you are asking for what we know about the user of an IP address [a series of numbers that identifies a specific user on the Internet] for 45 minutes five months ago,” Christian said. “There’s just no way. And quite seriously the agent looked at me said, ‘No, we have ways.’ ”

Technology and surveillance

Christian is just one of an estimated 300,000 people who have received National Security Letters requesting access to personal data. Phone records, Internet usage, bank statements and telephone conversations are just some types of information agents have gathered either through National Security Letters or surveillance.

Presidential authority in history
For the most part, the state of American civil liberties today compares favorably to past wartimes, said University of Chicago law professor and historian Geoffrey R. Stone.

“The intrusions of civil liberties today, if one could throw them in a bucket and weigh them against other periods, are relatively light,” Stone said. “On the other hand, that doesn’t mean they are justified, or not harmful, and it doesn’t mean they are responsible.”

There is one exception, he said.

“If you look at Adams, or Lincoln, or Wilson or Roosevelt,” Stone said, “they basically all said: ‘We need to do certain things, we need extraordinary authority to do them, and we’re going to do them openly and publicly and we’re going to go to Congress when we need to and get approval for them, and we’re not doing them in secret.’ This administration has taken the position that the president has the inherent authority to do whatever he believes he needs to do to protect the American people. That’s a completely different mindset. It’s unprecedented.

“One of the interesting questions about this period of history is what will be the precedent that is set,” Stone said. “Is it that the president can exercise this degree of secret autonomy and power or is it that this president tried to do it and was disgraced for it?”

-- Michael Humphrey

In September, U.S. District Judge Victor Marrero struck down the provision in the Patriot Act that allowed for the expanded use of National Security Letters, but there are still plenty of ways the government’s eyes peep into what we thought were our private lives.

“The government always had the theoretical capacity to read all of the mail,” said Geoffrey R. Stone, professor of law at the University of Chicago and author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. “But even if theoretically they could have read everybody’s mail, they couldn’t have done anything with the information unless it was obviously extreme. Whereas today, given the technology of computers, if they could read everybody’s mail, or e-mail, it could all be stored and later accessed in a way that’s good for law enforcement and extremely unnerving from the standpoint of individual privacy.”

With the advent of breakneck technological changes in recent years, what it means to be in public might change radically. Gadgets are starting to capture every move we make and word we utter. Computers that use biometrics to identify people, high-powered recording devices that become ever smaller and easier to disguise, cheap storage of data and powerful search tools to scour that data all add up to what many would classify a police state.

“It’s come up already in using infrared technology. The Supreme Court said, ‘Just because the camera is stationed outside of the house, if you are reading into the house, you need a warrant,’ ” said Ari Schwartz, deputy director of the Center for Democracy and Technology.

“Traditionally we’ve decided what you do in a public place can be monitored,” Schwartz said. “And if you’re doing it in your home, you can’t be monitored, that’s the distinction that we’ve made.”

England is perhaps the most noted country for its acceptance of surveillance through video. But despite reports last summer touting the effectiveness of street cameras in capturing would-be car bombers, a 2005 report showed that most closed-circuit television had not been effective because of lack of staffing.

“Constitutionally, they can [use cameras], they can have surveillance, you have no constitutional right to privacy from being photographed on the street,” said James Carafano, senior analyst for the Heritage Foundation, a conservative think tank. “On the other hand, by and large these aren’t terribly effective instruments. So I would argue, why would you use a lot of TV cameras in a lot of places when it’s fairly useless? Then you are creating a chilling effect by living in a surveillance society.”

Jennifer Granick, civil liberties director of the Electronic Frontier Foundation, says cooperation between government and corporations is adding another layer of intrusion.

“My concern is a hybrid of using the mass networks as a collection point for listening in on Americans’ conversations and reading our e-mails, gathering information about us, and then denying us the right to know what exactly is happening with that information,” Granick said.

Her foundation is currently representing AT&T customers in a class-action lawsuit against the phone company for handing over phone call records and e-mails to the National Security Agency that were obtained without warrants. Some say this is a clear illegality under the Foreign Intelligence Surveillance Act. The Bush administration has lobbied Congress for two years to amend the surveillance act in a way that would allow for wiretapping.

Just before its summer break, Congress passed a temporary law authorizing the wiretapping procedures that the National Security Agency requested.

Civil liberties

Strictly defined, civil liberties are laws and rights that protect citizens from their own government, such as the undisputed freedoms of speech, privacy, due process and religion. Warrantless wiretapping, surveillance of dissent groups by the FBI and local police, race and religious profiling, and denial of due process for U.S. citizens have convinced many civil libertarians that freedoms are losing out to security since terrorists crashed planes into the World Trade Center, the Pentagon and a Pennsylvania field more than six years ago.

“There’s been a lot of people post-9/11 who’ve tried to frame this debate as security versus civil liberties,” Carafano said. “Good programs should be able to do both; those things don’t have to be in conflict.”

-- Levine Roberts Photography/
Richard B. Levine

Several hundred activists rally against the USA PATRIOT ACT in front of the New York Public Library in July 2006.

Clark Ervin, the first inspector general for the Department of Homeland Security and now an analyst for the Aspen Institute, agrees with Carafano that both civil liberties and security need to work harmoniously. But does the United States currently have the proper approach to sustain a free and safe society?

“In a word, ‘no,’ ” Ervin wrote in an e-mail interview with NCR. “The abuses at Abu Ghraib; Guantánamo; renditions; the roundup of Arab males after 9/11, etc. all have gotten us off balance and served to alienate the Muslim community (and much of the rest of the world) at a time when, as never before, we need allies in that community.”

Stone added that while it is easy to criticize the government, especially the executive and legislative branches, it’s important to understand the task they are undertaking.

“The pressures of an immediate crisis are so great that it is difficult to keep in check the tendency to be safe rather than sorry,” he wrote. “For the first time in world history, a relatively small number of people have the capacity to inflict very large damage, where it’s almost impossible to deter them. The natural recourse in those circumstances is to focus much more aggressively on prevention. That puts enormous pressure on the government to be very aggressive about gathering information.

“The Democrats themselves are worried about putting in place protection of civil liberties that might unduly interfere with protecting the nation.”

Carafano says the blame flows all too often in one direction.

Protection of civil liberties is “a legitimate issue, where government needs to make sure that it’s really doing the right thing,” Carafano said. “But then you have this thing called the chilling effect, which is, ‘If I feel I’ve been impinged upon, then I’ve been impinged upon.’ We need to be grown up about that. If you’re a canary in the mine shaft and you start screaming or falling over every day, pretty soon nobody pays attention to the canary anymore.”

Speaking out

That’s not a criticism that lands well on Christian, who became the director of Library Connection for his technical acumen, not his staunch defense of the First or Fourth Amendments.

Keeping the flame alive
The American Civil Liberties Union works to keep the topic of civil liberties on the front burner, and it’s not alone:

  • The Rutherford Institute uses the courts to defend civil rights in America.
  • The Electronic Frontier Foundation and the Center for Democracy and Technology address liberties in a digital age.
  • The Bill of Rights Defense Committee promotes grass-roots efforts to protect basic constitutional liberties.
  • The Cato Institute helps out from the libertarian point of view.

-- Michael Humphrey

After receiving the National Security Letter asking for information about the library Internet user, he suddenly found himself pitted against the Bush administration because he believes that a library has a duty, both ethical and legal, to protect the files of its patrons.

“There are laws in 48 states that make it illegal to disseminate library patron information inappropriately,” he said. “Now I know federal law trumps state law, but what does that tell you that 48 states have such a law?”

The executive committee of the Library Connection decided they would resist the request on the grounds it was unconstitutional, and the Library Connection sued the United States Attorney General to lift the gag order that prevented Christian from discussing his interaction with the FBI. They would, through representation of the American Civil Liberties Union, ultimately defeat the order in May 2006. Christian was not even able to attend proceedings in the case, lest he be identified. (A Washington Post reporter blew his cover by getting hold of a court document in which Christian’s name was accidentally printed.)

“One of the reasons so few are familiar with the concept of National Security Letters is because everyone who receives one has to take the secret of them to their graves,” Christian said.

Now, with the gag lifted, Christian and three other plaintiffs -- known as the Connecticut Four while anonymous -- are traveling the country these days telling about their ordeal.

Christian is apt to remind people of the quote generally attributed to Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Michael Humphrey is a Kansas City, Mo.-based freelance writer.

National Catholic Reporter, November 2, 2007

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