Privacy in a post 9/11 world

Last week I was in Germany, as a guest of the IFA Berlin consumer electronics show. That means, of course, that I had to perform the airport security samba. I took off my shoes and my belt; stuffed my watch, keys, cell phone, and loose change into the pockets of my jacket; took my laptop and my tablet PC out of my backpack; and placed them all into gray plastic bins on the X-ray machine’s conveyor belt. (I’d already removed the Swiss Army Knife from my bag and drank or dumped any bottles containing more than three ounces of liquid.)

Then I stepped into the scanner, turned sideways, and did the “hands up” pose. Lord only knows how much of me the TSA agent saw. (I don’t envy them that job.) When I stepped out I got wanded to make sure I wasn’t hiding something under my clothing. At the end of the line I collected everything, put myself back together, and moved on – leaving the TSA and my fellow passengers reasonably assured I was not carrying box cutters, shoe bombs, or incendiary devices in my underwear.

This is the world we live in after 9/11. It’s not a huge sacrifice to go through airport security. I’m happy to do it, despite my suspicions that it is mostly just National Security Theater, designed primarily to reassure us that the government is doing more to protect us now than it was 10 years ago.

9/11 was many things – an enormous national tragedy, a huge wake-up call, a time when this country felt truly united, if only briefly. But it also marks the unofficial birth of the National Surveillance State.

This is a topic for a book, or even a series of books, not a blog post. So I can only touch on a handful of ways 9/11 has changed our notions of privacy. The first one being the Patriot Act.

This massive piece of legislation, passed by an overwhelming majority of Congress virtually without debate, broke down bureaucratic barriers between law enforcement and intelligence gathering agencies, letting them collaborate in the hunt for terrorists. But it also turned our 4th amendment protections against unlawful search and seizure on their ear.

Peter Swire, a professor at the Moritz College of Law of Ohio State University and former top privacy official in the Clinton administration, says the Patriot Act took reforms to law enforcement that had already been proposed by the Clintons and stripped out all the privacy protections.

A month after the attacks Swire wrote an Op Ed for the Atlanta Journal Constitution in which he said, in part:

While [the Patriot Act] sharply expands how government can wiretap e-mails and Web surfing, it provides no remedy if officials  exceed that authority. It also breaks down the wall that once separated foreign intelligence-gathering from domestic law enforcement, without creating new safeguards to replace those it removes…. there are strong reasons to support new surveillance  powers. But we should stay keenly aware that we are repealing safeguards created because of previous abuse.

What happened next?

“Sneak and peak” searches conducted on suspects’ homes prior to obtaining a warrant. National Security Letters demanding to know what books certain library patrons had checked out or to see the health records of employees. Warrantless wiretapping by the NSA. And for some, renditions, torture, and detention without trial.

A June 2005 report by Washington Post reporters Dan Eggen and Julie Tate showed that more than 80 percent of the then-400 cases where Patriot Act rules were invoked were unrelated to terrorism.

An analysis of the Justice Department's own list of terrorism prosecutions by The Washington Post shows that 39 people -- not 200, as officials have implied -- were convicted of crimes related to terrorism or national security…. But a large number of people appear to have been swept into U.S. counterterrorism investigations by chance -- through anonymous tips, suspicious circumstances or bad luck -- and have remained classified as terrorism defendants years after being cleared of connections to extremist groups.

Some elements of the Patriot Act have expired, others have been found unconstitutional by the courts, but much of it remains on the books today. Supporters will of course invoke the “it kept us safe” argument. The problem with that argument is that it’s impossible to prove. Or rather, you could use it to prove anything that didn’t happen over the last 10 years. A Martian invasion, for example. There’s correlation, of a sort, but no causation.

We can, however, demonstrate what it did to our Constitutional rights.

The second big effect of 9/11 is the explosion in data mining and surveillance. When I flew to Berlin last week, my name was checked against that Kafkaesque No-Fly list of possible terrorists. My passenger name records were almost certainly entered into some kind of database, along with credit reports, supermarket shopping records, employment histories, health records – and no doubt my Facebook friends, groups, and likes – to determine if I fit the profile of a terrorist.

A massive December 2010 report by the Washington Post (again) details the massive National Surveillance Industrial Complex that has grown up since 9/11. Nearly 4,000 separate counter-terrorism organizations have sprung up, from international intelligence gathering groups to local law enforcement, all keeping a close watch on you and me.

Their job is to find the bad guys before they do something bad. The problem is that it’s too easy to make incorrect assumptions and target the wrong people – or for bad actors to abuse the system and target people for the wrong reasons. Government spying didn’t start with 9/11, but the events that day accelerated their efforts, offering blanket justification and unlimited budgets.

There’s always been some kind of tradeoff between security and privacy. You want the police to be able to bust down your door if there’s an attacker inside; you don’t want them to be able to come in any old time they feel like snooping around.

I believe after 9/11 we tipped too far in one direction; the question still remains whether we can ever regain our balance.

ITworld TY4NS blogger Dan Tynan wishes you all safe travels on this weekend – and any other time. Visit his eHumor site eSarcasm or follow him on Twitter: @tynan_on_tech. For the latest IT news, analysis and how-to’s, follow ITworld on Twitter and Facebook.