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Minority report: Our civil liberties matter

By Chris Nosko
web posted July 22, 2002

The war on terrorism has brought civil liberties to the forefront again. Americans have heard proposals for national ID cards, seen changes in the Federal Bureau of Investigations guidelines, and witnessed broad expansion of law enforcement authority with passage of the USA PATRIOT Act. Each of these changes when viewed by themselves is a small step that many are perfectly willing to take in the name of safety. And when viewed together, a majority of the nation is ready to support them.

Law enforcement argues that we can gather more information but leave in place procedures that would limit its use. These procedures would be as strong as current practice. For instance, we might mount surveillance cameras in public squares that always record but only be able to use the tape if a crime were committed in the area. Or we might allow the FBI to gather all sorts of information but only mine through it looking for data related to a specific crime.

According to the Attorney General, these proposals would provide three major advantages: 1) New evidence would allow law enforcement to solve crimes once viewed as unsolvable. 2) Instead of relying on potentially flaky circumstantial evidence, court cases could be built around concrete data. 3) Law enforcement would operate more efficiently by having centralized access to resources. All of these proposals would require the collection of data before suspicion of a crime.

So, what is wrong with that, you might ask? The government has improved law enforcement at seemingly no cost, and procedures are still in place to limit use of the data. Ideally, there is nothing wrong. If law enforcement could be limited to using this data consistent with today's procedures, then the country as a whole would benefit from increased security without loss of civil liberties.

The future of American law enforcement? Tom Cruise and Colin Farrell in Minority Report
The future of American law enforcement? Tom Cruise and Colin Farrell in Minority Report

This argument could even be carried to its logical extension. We could place cameras everywhere, including private property. As long as these tapes were only viewed under proper circumstances, no harm would occur.

But we do not live in a perfect world. People are susceptible to corruption or, at the very least, make mistakes. Most people accept this but argue we can create systems with enough security to outweigh this character flaw.

But even if a security system could be designed that never allowed unauthorized access (doubtful, as security always seems to take a backseat), this data would not be secure. Someone has to see it for legitimate purposes - computer maintenance, law enforcement, and supervisor oversight. The best technological systems cannot change human nature to prevent unauthorized sharing of this information.

While human error and corruptibility is important, it is argued that limiting the people that have access to the information and doing our best to ensure that they are morally outstanding individuals solves this problem.

Even so, societal incentives are such that it is inevitable for expanded usage of this data to occur. On a political level, it works like this: individuals are directly affected by crime in their area and less affected by a person who is wrongly accused. Politicians recognize this and are inclined to gain votes by allowing expanded usage of the data, which appeals to their constituents' natural affections. Watergate is an example of this incentive to misuse data. The more data acquisition costs are reduced (such as by centralizing data), the more likely politicians are to respond to this incentive.

These incentives lead to a dwindling spiral of more people being given access to data, which creates a greater possibility of corruption and misuse. Law enforcement policies illustrate this process. The FBI developed and used an Internet monitoring tool, Carnivore or DCS 1000. Rather than only gaining access to specific information relevant to a criminal investigation, Carnivore gathered all information that passed through an ISP and filtered out what it is was looking for. Cases occurred where the filter misbehaved and cataloged information not relevant to the investigation. Carnivore set a precedent that has been followed with proposals for national ID cards and changes to FBI guidelines allowing data mining and storage when not related to criminal investigations as well as expanded Internet surveillance that was not permitted when Carnivore was first established, but only since the passage of the USA Patriot Act.

Milton Friedman once said that a benevolent dictator was the best of all governments while a constitutional republic was the least bad. Unfortunately, in the current political and cultural climate, this is unlikely. The same problem exists with civil liberties. If we could truly ensure that government never misused any of the data it collected, I would forfeit many of my rights to privacy. In fact, we would not need to have a right to privacy.

Chris Nosko is a summer research associate at the Free Congress Foundation.

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