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Privacy vs. Public Safety
Monday, November 26, 2001 at 3:00 PM
AMITAI ETZIONI: Ladies and Gentleman thank you for joining us tonight to a Communitarian Dialogue. What we're going to
try to do is something which I believe you haven't seen on television too often, which is having a true conversation, a
genuine dialogue. We met a little before, and we all agreed that this is going to be, no hardball, no declarations, no
courtroom gimmicks, but an attempt to see if people from rather different backgrounds and viewpoints can have the kind
of dialogue that at least the campus used to be all about. I am going to introduce the panel very briefly. You will find
their long list of achievements on the Communitarian Network web page. Starting from this end is Nadine Strossen, who is
a professor of law at New York Law School and President of the ACLU. Next to her is Victoria Toensing, who is a founding
partner of the Washington law firm of diGenova & Toensing. She was Deputy Assistant Attorney General in the criminal division
of the United States Department of Justice. Next to her is Orin Kerr, a professor of law at George Washington University who
served in the Department of Justice criminal division. And finally, at the other end is David Sobel, general counsel of the
Electronic Privacy Information Center in Washington, a not-for-profit research organization that examines the privacy implications
of computers. To start the discussion rolling before we get to some very important issues raised by the assault on America and
the response to it by our government and its implications for the issue at hand, we thought we should go back a bit and take
a baseline, what was the condition of privacy before 9/11, was it dead? "Get over it," as one of the CEOs of Silicon Valley
suggested? Was it in ill-repair? What were the major new threats to privacy before 9/11 and what light do they cast on the role
of the government in the so-called business of privacy? With that as our leading first topic why don't I ask Nadine Strossen,
the head of the ACLU, to start us rolling and then everybody is going to join. There are no statements we're just beginning the
conversation. Please-
NADINE STROSSEN: OK, Thank you Amitai. Prior to September 11th, of course, privacy was facing many threats, Scott McNealy's
infamous statement, I think, was a provocative overstatement--privacy was far from dead. But there were many threats, both
from the private sector and from the public sector, from the government. From the private sector, as the American public is
becoming more and more aware, and more and more concerned, there was very little legal protection against private sector data
gathering of everything from people's online e-mails in their workplace, to people's web surfing and that this could be gathered
by direct marketers, by potential employers, by potential insurers, even people's most intimate information such as financial
information and health information was not protected under existing law and there was growing concern about that. Likewise, the
government was exercising, to many of us, frightening new powers of surveillance using new technologies, not only online technologies,
but also video surveillance cameras, thermal imaging devices, and so forth. Again, a great deal of cause for concern. On the
positive side though, before September 11th there were a lot of developments in terms of legal rulings and in terms of pending
legislation that made me very optimistic about where we were heading in terms of increased protection for privacy. The United
States Supreme Court issued a very important decision last summer in which Justice Scalia, one of the conservative members of
the court, took a very, in some sense, conservative view of the Fourth Amendment's protection of privacy and said that we have to
conserve the principles of privacy from invasion even by newfangled technologies that do not involve the kind of physical intrusiveness
that were the specific concerns of the Framers when the Fourth Amendment was written. And in a decision that held that the Fourth
Amendment did protect against thermal imaging devices that were used to get information from inside the home, Scalia wrote, I think,
one of the most ringing endorsements of the concept of privacy that's protected against the government, one of the most ringing
endorsements that we've had since Justice Brandeis's eloquent opinion in 1928. On the congressional front...
ETZIONI: Let me just ask you about this one, do I hear you correctly as saying that while there were many challenges to
privacy from the private sector, aside from some governmental ones, the people who came to the rescue of privacy were the
courts? So a bunch of government protected it from the private sector. Do I hear you correctly?
STROSSEN: Absolutely, and you know that the ACLU is not an anti-government organization. We think that individuals sometimes
should turn to their government and ask the government to protect us against both other government officials or private sector
actors and so in fact we did call upon Congress to pass laws that would provide some protection from data gathering without
information, without knowledge, and express consent in the realms of financial privacy and healthcare. I could go on and on,
and I want to yield time to the rest of the panel.
VICTORIA TOENSING: I think that what's wonderful is that Nadine said what I've known for so many years, that conservative is
sometimes very good, and Nino Scalia is probably one of the best and most articulate justices on the Supreme Court. In our pre-9/11
scenario, I don't want to repeat what Nadine was talking about; but I do want to add another factor that I think is a great invader
of our privacy, and that is the press. There are so many examples, and I use no other than the Robert Bork hearings where the press
thought it was perfectly OK to take whatever was found in his trash can and to tell what books he had been reading and what kind of
movies he had been renting for his private viewing. So I would hope that as we do pre-9/11 and post-9/11, we also include what the
press is doing in that arena. Also, I want to point out another caveat, and that is that I'm not the greatest fan of Congress. I've
worked in both the Senate and the House and I love both tenures, but I find that it truly is sausage being made. So in one area,
Nadine, the privacy for healthcare is really problematic because in its desire to keep healthcare information private, and I say
this with several healthcare clients, I think it's great that Georgetown University, for example, can no longer put a book out in
front and make you sign your name and what procedure you're there for, so that everybody who comes in can look at it. On the other
hand, there are so many problems caused by this new healthcare privacy law, HIPAA, that doctors cannot talk to referring doctors
about what the problem is with the patient that's being referred unless there's all kinds of consent forms being filled out, and
that's a problem if time is of the essence. So I think post-9/11 or pre-9/11, Congress can create lots of problems when its trying
to cure something.
ETZIONI: Let me just ask you to clarify a little before we move on. For those of us who live here, we love generalizations. So the
details are illuminating and I find them very helpful, but in general do you feel that the notion that the main, or at least a major
new challenge of privacy before 9/11 came from the private sector, and that these new regulations to stay with medical privacy, while
they're excessive here and there, they are basically part of the cure, or do I hear you wrongly?
TOENSING: Well, I think the government and the private sector each have their problems and that we must be on guard with both. A
lot of it's trade-offs, for example, I can't get the Wall Street Journal on my Internet unless I sign up and tell them all these
things about myself, so I refuse. We just get it at the office. I don't like that. I don't want to have to sign up for all that
information on the Internet--give me access or don't give me access. On the other hand, when we talk about healthcare privacy, there
are healthcare companies in insurance, for example, who want to get out a whole new procedure about diabetes to all of its people who
are on its rolls who have diabetes. Yet it's problematic under this new legislation because in order to get everybody who has diabetes,
you've now taken away the privacy, as far as keeping records, of people who all have diabetes, so you can't say to them that there is
this new program out there or this new kind of medicine out there you may want to look into it with your doctor. So, I am not a privacy
purist, but I think there are trade-offs in a lot of areas of privacy, but certainly there become a lot more problems when you try to
solve some of them.
ETZIONI: Let me clarify one more thing before we go to the next member of the panel. You raise another topic and I think we are able to
handle two balls air in the air at the same time, and it's the balance between the First Amendment and privacy which is a very important
but distinct topic. Much of the discussion is really between two rights, rather than wrong and right. I just want to be sure, again, I
have zero training in law so all this for me is new, usually people talk about that the First Amendment is kind of semi-sacred and
everything else doesn't quite rise to the same status. You would not endorse that position?
TOENSING: I think I would endorse that position. I think there is a hierarchy of rights, and the First Amendment is the most sacred.
I don't know if it's just the years of training of law school, but I think if we had to start marking off rights that we could do
away with, that would be the last right.
STROSSEN: I think that the reason Dr. Etzioni was asking that question, was because you talked about the press violating privacy
rights, so I assume you would be in favor of some restrictions on the sacred freedom of the press.
TOENSING: No, this is only awareness and knowledge. I said, if we're talking about our great concern, let us be aware. I'm glad you
brought that up. Let us be concerned that there are some people out there that can take away our privacy rights in a way that can be
just as disastrous as anything that the government or private industry could do and yet we accept that. I'm glad you brought that up.
ETZIONI: That's very helpful. Orin Kerr.
ORIN KERR: I think it's difficult to talk about something like privacy in the abstract. What is privacy? It's a word that's similar
to liberty. People have a rough sense that they like it, that it's a good thing, that they want as much of it as they can get, but
exactly what is it? Well, that's kind of a complex question. And I think we've seen that in some of the answers so far. We can talk
about privacy vis-à-vis law enforcement, or we can talk about privacy from private sector information gathering. Are those two
related necessarily? What are they both getting at? I think there's a nexus there but it's difficult to say what we mean by what
is privacy and did we have a lot before, or do we have a lot now. I think, in the area that I've worked in primarily, which would
be law enforcement issues, government surveillance, particularly Internet-related government surveillance issues. I think the privacy
laws are actually quite strong, much stronger than people assume they are. So, for example, if you worry about whether your e-mail is
being read, well you should worry much more about whether your postal mail is being read, because the laws governing interception of
e-mail are actually much more privacy-protecting than the laws governing protection of mere mail. So once you move to the cyber-realm,
the laws are significantly more strict, and I think that's probably a good thing. I am generally in favor of these more privacy
enhancing laws. At the same time, it's sort of difficult to say in the abstract, do you have a lot of e-mail privacy because these sorts
of cases come up in so many different ways. It's like asking, do you have privacy in letters, do you have privacy in your thoughts.
These are sort of difficult questions in the abstract, but at least when we speak specifically, which is probably the more productive
one, I think actually we find we enjoyed more privacy both before 9/11 and we have a lot of privacy today compared to the historical
states we've had.
ETZIONI: Well let's stick with this example you gave, so we can be specific. And let's say the privacy of our e-mail, and as far as
I know you're very much on the money by saying that our e-mails are better protected from the government than our mail or maybe our
phone calls, at least before 9/11. But when you talk about my employer, or other private sector people, am I correct in saying that
your e-mail has very little protection and depends very much on the policy a particular employer happens to put in place and on the
state laws but there's no constitutional or federal protection--is that true?
KERR: That's roughly true. The law basically regarding your e-mail privacy at work is that you have a right to not have your e-mails
read at work but you can waive that right. And typically what employers do is on your first day on the job they'll say, here is the
Internet policy for your work and the first line of the Internet policy will be that you waive any privacy rights you have in your
Internet usage. So those policies end up having a lot of weight and I think we're at a funny historical time now when people aren't
quite aware of the rights they have. Where as in ten or fifteen years from now I would expect that people will know the privacy rights
they have and when they look at different employers, just like they might pick a health plan or a certain employer based on the benefits,
they'll say well what's your Internet monitoring policy. I would rather have Internet privacy and I'm willing to bargain for that for
employment. So, those rights are there but waivable.
TOENSING: But can I just bring up one thing, when you were talking about all this protection? When there's a lawsuit or a criminal
investigation, all of those protections of the e-mail almost go for plunk. As someone who has represented people who have had e-mail,
I can tell you, the government can have access to it in any kind of criminal investigation. Congress can subpoena all of your e-mail
if they're saved or if they're saved in some kind of hard copy. In civil litigation, they're all a matter of discovery. Ask Bill Gates.
KERR: And ironically, once you put it into a hard copy, once you print it out on paper, you lose the privacy protection.
TOENSING: They can even go right into the computer and get anything that's saved.
KERR: With a search warrant.
TOENSING: Yes, or a discovery request. So, there you are.
ETZIONI: One reason the medical privacy law was changed at the last moment, it initially distinguished between paper and electronic,
and then they decided, since things fly back and forth that it no longer makes sense. I am going to ask David Sobel to help us clarify
something. I learned from Michael Froomkin, a professor of law at University of Miami, that quote, "in the end it comes down to whom
you fear more, the FBI or the Mafia." And I add to it private business. So the question, I'm still not clear, frankly, if before 9/11,
were we under major assault from Double Click and its like, or is that just something I made up for the sake of conversation.
DAVID SOBEL: Well, let me answer your original question, which I've been thinking about for awhile. So let me address that first,
which is the question of whether prior to September 11th, privacy was dead. And, I don't think it was, it was probably injured. I
think that the sense on the part of the public was that privacy was becoming a very significant issue and a very significant problem
and we were seeing the results of that in all of the public opinion polls that were taken on the issue, and there were certainly areas
in which a great deal of our privacy had been lost and I think if you look at some of the older technologies and the older record keeping
systems, you saw that pretty much the genie was out of the box and it was going to be difficult to solve some of those problems. The great
example is probably the use of the Social Security number. Although everybody is concerned about how widely used the Social Security
number is and the privacy implications of that, it's a very difficult problem to sort of retroactively go back and fix. But there were
a lot of new issues on the horizon. For instance, issues that arise from wireless technology. The fact that, now with cell phones
wireless communications, your location can be pinpointed, which is something that was never technologically possible before. And I
think there was a lot of public concern about who was going to get information about where I am when I'm walking around in the city
using my cell phone. And that was an issue that Congress was starting to look at. Another issue relates to the whole First Amendment
versus privacy issue, which is putting public records online. This was also an issue that people were beginning to feel very strongly
about. The fact that land records and licensing information, and all kinds of files that had been sitting in courthouses and government
offices for years and publically available, were suddenly going to become very widely available on the Internet. So that was another
new issue that was starting to get a lot of attention.
ETZIONI: Can you take a moment and explain this one, because for some of us that's a new issue. I mean, why wouldn't we want something
which every reporter, every citizen can come and see, what's wrong with putting it on a web page?
SOBEL: Well, this was the issue that was being debated before September 11th, and I think that issue is still high on the agenda of most
of the people who care about these issues. The assumption in the past had been that information that was in a local courthouse, that might
have local importance, that a local newspaper might go and dig out, yes should certainly be available, but the questions was, should it be
made widely available online, should it be made part of a commercial database, and I don't know that there are any easy answers to that
question. But the point is that the dynamic has suddenly changed and it's no longer a question of should it be sitting in the courthouse
for the local reporter to go get, everybody would say that's important and that's a right that should be preserved but suddenly the equation
really gets changed when anyone in the world, out of idle curiosity, can find that information. I don't think anyone has had any easy answers
to the questions that are raised in the area of widespread Internet access to those kind of records. But that's an example of the kind of
issue, prior to September 11th, that was being debated and that people felt very strongly about.
ETZIONI: Let me just put in here the one penny a sociologist can add to this discussion. The sociologist would argue that if it's your local
community, and let's say that you read in the records that somebody was caught driving drunk, the local community would know if this is
somebody who has been driving around drunk sixteen times or his wife died the evening before, they would have personal information they
could take into account to humanize these records but if it flies around on the Internet, it lacks that information.
SOBEL: Well, you're right it loses the context. And the other problem that's related to that is information seen in isolation. So that for
instance, the fact that somebody was arrested is a matter of public record, it can sort-of go off and today take on a life of its own in
some database and the fact that that person was then tried and acquitted might not get matched together with that first fact that he was
arrested. So these are all of the kind of issues that arise.
ETZIONI: Let me just summarize for a moment, and then turn to the panel time before we go past 9/11, so let me see if I have it right. And
I'm asking not declaring. Privacy was injured before 9/11, but not dead. It suffered both from new governmental moves and some private sector
moves, but on the other side of the ledger there were some new regulations, new Supreme Court decisions and some new technologies, so it
really was more like you have in war, there's a new defense, a new attack and a continued tug-of-war, though privacy was somewhat losing by
9/11. Is that a fair summary?
STROSSEN: I think that's a fair summary. I would like to throw out one other technology that's very important that we haven't mentioned, and
that is DNA testing and increasing pressures by government to spread the net wider in terms of the population from whom samples are taken,
and obviously that can reveal incredibly intimate information about not only you, yourself, but other family members. I think that your summary
is very good Amitai, I would like to just add one thing that made me optimistic before September 11th, and continues to make me optimistic,
although the challenges are greater, as we'll be discussing. And that is, and it refers to a point that Victoria made. Defense of privacy is
something that really spans the ideological and political spectrum. The ACLU is a nonpartisan organization and we always work in coalitions.
On privacy issues, the coalitions have been breathtakingly broad. Phyllis Shlafly of the Eagle Forum whom I usually debate over what I consider
to be an issue of privacy, she considers to be murder, you know what I'm talking about, abortion. But stood right up there with me and Ralph
Nader as we were endorsing congressional legislation that would protect financial privacy. And the same thing within Congress, you saw a very
broad bipartisan coalition poised to pass new legislation that we can agree, Victoria, would probably not be perfect in the details but at
least was subscribing to the basic principle that you should have control over data about you and it should not be available to anybody without
your express knowledge and consent, should not be shared with anyone else without your express knowledge and consent.
KERR: I am not quite sure what it means, to be honest, to say that privacy is injured. Not only do we not quite know what we mean by privacy,
I think, or at least there are a lot of different ideas being labeled privacy but also to speak of something being injured is to assume that
it's like a human being that could be healthy and then receive an injury and then hopefully the being becomes healthy again. I think the
difficulty with that description is that it assumes that there was some time at which time privacy was healthy, and I would guess that no one
on this panel can name a date--May 4, 1962 or something like that--where it was actually healthy and then things got worse.
TOENSING: And to pick up on Orin's point here, and it's an excellent one, I think that also privacy is trade-offs. We talk about your concern,
Nadine, and I understand it for the DNA material, so that if somebody is prone to breast cancer, they don't get good health insurance. On the
other hand, for those who have been involved in the criminal justice system, it helps us with more of a certainty to understand whether this
is indeed the rapist or not. It helps people that could be cleared who otherwise would not be cleared. So, I look at a lot of these areas and
certainly it's all brought on by technology, not just government activity, but the technology that has been brought to us. We get to e-mail
our friends, oops, it now may be discovered. There are so many trade-offs. I don't think we can discuss it in the area of is the patient dead
or alive, but what benefit is the patient getting and what detriment.
SOBEL: I want to respond to Orin's question of what do we mean when we talk about privacy. When I talk about privacy, and when I talk about
it being injured, I am referring to, as Nadine said, the right of the individual to control information about themselves. And yes, that has
never been an absolute right, but I think it's fair to say that 100 years ago the average individual had a much higher degree of control in
that area than they do now, largely because of advancements of technology and the creation of large institutions.
ETZIONI: Again, I salute your reluctance to generalize, that's an enormous credit to scholarship, but we hear in the public dialogue, and
out there are people who say, compared to twenty years ago, if you use 1980 as your baseline, I will stop talking about it being injured but
diminished, is it up or down? And again, it may be different in different sectors, but in the end, we often talk about the private sector
and the public sector as a very crude generalization, but we'll leave it undetermined for those of you who feel we are over-generalizing,
100 years ago was before there was a constitutional right to privacy. How about dating it 35 years ago?
SOBEL: I think anywhere prior to 20, 25 years ago there was greater degree of individual control over information about themselves.
ETZIONI: Well, thank you for your patience with me at least, and for not jumping to the hot 9/11. There is no need to repeat the tragic
event of the assault on American and the concern some very serious people have that it may not be the last attack, and there are people
out there who openly declare that they want to do us much more harm. There's no reason for us to take them lightly, in the past they were
good to their menacing words. So, the most elementary question is, again, if I may put it in this general way, does that compel us to look
for a new balance? I use the word balance because at least some of us think about, I'm not sure about the word trade-offs, but in terms of
that we face two competing claims. Our concern, as we ought to be, I think nobody questions at all, about our rights, about privacy and we
are concerned about public health and public safety and then we see if we can get them both to work, that's fabulous but when they compete,
we need to discuss: a) There's a new historical context, does that make a difference for the balance and b) we may as well throw the next
question on the table, although it's going to take us awhile to sort it out, if we are going to be balanced, we need to have some firm criteria
which will tell us how far we should go and how far is too much. Maybe this time we'll start at the other end, David. Does 9/11 make a big
difference?
SOBEL: Well I think it does, because, on the one hand, we now have government investigative agencies that are seeking new powers that we
can debate how to characterize those powers. Many of us believe that they are extraordinary and unprecedented and extremely broad. We also
obviously now have a willingness on the part of Congress to give those agencies those kinds of powers, where in the past there had been a
lot more apprehension about granting agencies like the FBI and the intelligence agencies these types of invasive investigative powers,
and I think we all have to acknowledge that there is a different mood within the public that is somewhat reflected in what Congress has
done. Congress overwhelmingly passed the new antiterrorism legislation over civil liberties objections, and I think that's an indication
of the fact that there is at least momentarily, and I hope temporarily, some public willingness to tip the balance a little bit more on
the side of government investigative power. But I am also hopeful that over some period of time the balance is going to swing back and
that the public will come to realize that even before September 11th, government investigative agencies had a great deal of power and,
for whatever reason, did not prevent the events of September 11th.
ETZIONI: I just want to be sure that you are not misunderstood to say that we should settle things according to public opinion polls.
That's not what you're saying, are you? You're not saying that the decision of how far to go should be decided by the public's mood?
SOBEL: No, not at all. But I think when we're dealing with a body like Congress, which is obviously political and is always gaging public
opinion. We saw a reflection of Congress's reading of public opinion in the votes for the antiterrorism legislation, but certainly it's
not a matter of majority rule, and one of the complaints that those of us in the civil liberties community have about these new proposals
and the new legislation is that the role of the courts has been limited. And that has always traditionally been where the protection of
the minority comes from, and what's really troubling about the new powers is that the judicial oversight of those authorities has been
limited.
TOENSING: The Patriot Bill is the official name for it, if we're going to criticize it. I think you ought to tell which specific part of
it you're criticizing, unless you're criticizing the whole kit and caboodle. If so, that's important to know, talking about not getting
into too many generalities and talking about specifics. But those of us who worked in the Justice Department had to deal with some of
those laws on the other side to conduct investigations, where people expected us to stop terrorism events or to certainly prosecute
successfully those who committed them, and we knew what the problems were with the laws that we were working with. It was a problem,
and when I would say silly things like, well how come we had to take down our wiretap, our FISA surveillance that we had up during the
TWA 847 hijacking, because we might get criminal information and certainly it wasn't meant to be for a criminal case. Then we went
black, we had nothing on the TWA 847, and afterwards, well you know we really ought to go up to the Hill to try to correct that and
people said, oh no, because you know how Congress is, and they might make the law worse instead of better for us to get what we need.
So, for a good many years, people stayed away from changing and really assessing what was needed in an investigation when you've got
an international terrorism event taking place. I don't know what you're disagreeing with in the new legislation that's taking away the
privacy.
SOBEL: I'm referring generally to the electronic surveillance provisions as well as the information sharing provisions which you're
referring to, the ability to more readily share information from a criminal agency like the FBI with an intelligence agency like the
CIA.
TOENSING: And then we criticize. I look at privacy as a balance scale and what do you get on the one side for what you have to give
up on the other? And what did we do? We criticized. How dumb of the FBI or the CIA that they knew this guy was on the watch list, and
look, the INS let him into the country. Well why is that? Because the two are not allowed to talk to each other. So how do we solve
that problem?
ETZIONI: I just want to be sure that we're all talking about the same situation. So, I'll just take one minute to describe it, then
you tell me how I've wrongly described it and then let's look at the specifics. So we are in a situation where the CIA is in, let's say
Indonesia, where the privacy laws are not all they could be, is tapping the phones of two known terrorists and one of them says, tell
our representative in Detroit that tomorrow is the big wedding, which is known as a code word for go and strike. Now, as I understand,
before 9/11, the CIA could not tell this to the FBI because it would violate the privacy of the gentleman in Detroit. This is the kind
of issue we're talking about--without going to a judge.
TOENSING: Once you get a Title III wiretap and the FBI learns about something.
ETZIONI: No, the CIA learned overseas.
TOENSING: But I'm telling you the better way to explain this, because the problem that I'm familiar with more comes up where the FBI
learns something on a T3, a Title III, wiretap and, they can't then share it with somebody at the border--watch out for this guy
coming in--if time is of the essence, they cannot. That's the better way to do it because the protection initiates with the Title III.
ETZIONI: And you want to defend that or explain that?
SOBEL: Well I don't think there's any question that in light of what happened on September 11th, we need to look at what the problems
were and do an examination, a postmortem of why it happened, but that was not what occurred prior to changing these long standing
restrictions on the movement of information. Keep in mind that these restrictions didn't come out of thin air. There were a series
of abuses that were well documented in the 60s and the 70s where the intelligence agencies were abusing information. Where intelligence
agencies were being used for political purposes domestically and those restrictions were put in place after a two-year long congressional
investigation. If the argument now is that it's time to revise that, fine. Let's do a similar in depth examination. Let's not rush through
legislation in the course of a few weeks. Which is what happened.
STROSSEN: Which is very broad and applies to criminal law enforcement in general, not just specifically to terrorist crimes. I'd like to
take a crack at your general question which I think is a very important one. And that is, should we have a new balance post-9/11 and I
think the answer to that is absolutely not. That we should use exactly the same criteria that we used beforehand. The factual analysis
to which you apply those criteria may be different, but essentially use what the courts have always used, so-called strict scrutiny. No
right is absolute, whether it be privacy or freedom of speech, but the government has a very heavy burden of proof before restricting
that right. It's got to show that the restriction is necessary and narrowly tailored to advance an interest of compelling importance.
Clearly, national security is of compelling importance. Personal safety is of compelling importance, but that does not mean that Congress
and other law-makers and policy-makers should fail to analyze the other part of the equation. Are these measures really necessary?
Indeed, Congress didn't even have time to examine whether they would be effective, let alone necessary. There was this rush to judgement,
not even judgement, it was just a stampede under great, unprecedented pressure by the Attorney General essentially saying, why do you
need hearings, just take my word for it that we need these powers. Although, oddly enough when he testified in Congress, he himself said,
none of these new, sweeping powers, that was his term, none of these sweeping powers of surveillance would have prevented the awful
tragedy on September 11th or could prevent a future one.
SOBEL: But then he said, but the fact is we didn't have those powers in place and the events did occur. Acute formulation.
TOENSING: Let's go back to our balancing scales. I agree with you. The legal test shouldn't be changed, Nadine, but what's on the scale
is being changed, and that is not just the age-old we need to investigate this crime and punish the perpetrators, but there is much more
of a need now to prevent a future attack. And that is a heavy weight on that scale, much more so than we ever dealt with, and I've had
years in law enforcement. We never really dealt with that kind of burden in law enforcement. This is something that we, who spent a long
time in law enforcement, have never had to consider so seriously before. It's really a new equation.
ETZIONI: We are lucky to have more than one topic in our hand. One is the question of the rush, given the situation.
TOENSING: Prevention. That's the rush, if that's what you're asking. Why is there a rush, because, and none of us are getting this
information, but I've been there where every day a threat crosses your desk, and some of it looks credible and some of it looks hooky
and you have to figure out which one is which. So the rush, the concern, is that we may have future attacks, what tools do we need now?
STROSSEN: But you can't rush the analysis of whether these tools are actually going to be effective.
ETZIONI: The term strict scrutiny was introduced by Nadine and I want to be sure that everybody out there understands what that means.
KERR: Well strict scrutiny is primarily used in First Amendment case law. Basically, it requires a narrow tailoring and a compelling
government interest. And it basically forces the government to only do certain things. It can't sort of generally act, when it acts it
needs to be very narrowly tailored, very specific action to address a very compelling problem. But that's not really, I think, the
issue that was raised by the Patriot Act and I think most of the Patriot Act really doesn't reflect those particular concerns. I mean
the Patriot Act overall was cobbled together, lots of different pieces of legislation. Most of them pre-existing. Lots of these problems
were ones which had been identified by the Justice Department years ago. Ways in which the electronic surveillance laws had created lots
of additional barriers to law enforcement. And small changes in the law could correct those problems and effectively restore the pre-existing
rule. Prior to 9/11, there was a lot of resistance to those proposals because there was a general sense that if the government wants it, it
must be something that is a dramatic expansion of government authority, so it was a very bad time politically to introduce those proposals.
What I think the government ended up doing was basically saying, well now is a good time to push together some things which we've had on our
plate for a long time. We can screen out some of the more controversial proposals and put forward a lot of proposals which generally are not
very controversial. I mean, what was interesting about the Patriot Act is everyone spoke very broadly, oh this is horrible or oh this is great.
But when you start talking about very specific provisions, what should the rule be for this or that, almost everybody agrees on all except a
handful of several hundred pages worth of text.
TOENSING: In fact, this is the first place where I've heard the electronic surveillance part being seriously criticized.
STROSSEN: Oh well, I think that's wrong because even under the extraordinary pressure that Congress received from the administration,
one amendment that was added over the strong objections by the Attorney General were sunset provisions to limit the duration of,
specifically, electronic surveillance provisions. And they were of great concern to members of Congress on both sides of the aisle,
including Bob Barr who had a distinguished law enforcement background, such as my co-panelist here. And he said, what's the rush to
judgement? We don't know that these new powers--that it was lack of adequate electronic surveillance power that was in anyway responsible
for this tragedy, and to the contrary, the government has been seeking these powers, not to investigate terrorism, but for the war on
drugs and ordinary criminal law enforcement.
SOBEL: I was going to say that an example of the overreaching is the fact that although this legislation was enacted very quickly because
of the concerns about terrorism, it isn't limited to terrorism. These powers apply for all criminal investigations.
ETZIONI: But you're not saying that if they were limited to terrorism, then the rush wouldn't bother you.
SOBEL: No, not at all. But the problem is exacerbated by the fact...
TOENSING: Well, there is no crime of terrorism. We specifically made that decision back in the 1980s. You wouldn't have a crime
called terrorism because that would just make the prosecutor have to prove something additional to the horrible crime that it is,
and that is crime of violence or kidnaping, assault, murder, whatever the underlying common law crime was, and we decided we're not
going to make it a bigger deal and call it something grandiose.
STROSSEN: But one could have limited it to harm to human beings. And that was in fact an overarching amendment that we proposed
which was not adopted.
TOENSING: Without getting too bogged down in that legislation, I'm sure you don't want to do that, the roving wiretap for example,
as people throw away phones today and get a new number, what the Justice Department had to do was go back and get a new court order
every time a person threw away a phone. So it was just crazy to have the wiretap papers which are that thick because I always had
to review them, and they had to be refiled every time somebody threw away what are now disposable phones. So that's just one example
of technology.
SOBEL: That is an interesting example. Because that is the example that the Attorney General kept giving in support of the roving
wiretap provision, but it also would apply, for instance, to a student at George Washington University who has an account on the
university system, and if that student is under investigation and is seen going into the computer lab on the campus, the Internet
access for the entire facility will be monitored under the roving wiretap authority. The student might come use this facility,
that's adequate justification to serve an order on the university to allow full-time monitoring of the university computer lab.
ETZIONI: Professor Kerr, do the students have to worry?
KERR: Well, not unless they're terrorists, I suppose.
STROSSEN: That's not true.
KERR: There's an important thing to keep in mind. We already had roving wiretaps before 9/11. We had them. That was the law. The
Patriot Act added it in one circumstance. Now, does the press report it that way? No. They say, suddenly the Justice Department
wants roving wiretaps and we have this starting debate of whether the government should have roving wiretap authority. But the
government already had this authority. The Patriot Act, you could criticize it either way, you can say, well, it didn't really
do anything and maybe we needed something that did more or you can say, well, good news, it didn't really change the law that
much, at least on the surveillance provisions. I think some of the other provisions which have been more controversial are where
the real changes have occurred. But we're largely talking about a reaffirmation of pre-existing law. So maybe we should go back
and say, should the law have been this way in the first place? But we're merely talking about continuing the law the way it is,
not a dramatic expansion of law enforcement.
ETZIONI: Let me just summarize where we are as we're getting into the last segment of our discussion. So, first of all, some
of us feel that things have been rushed and should have been more carefully listened to, investigated, hearings and such. Some
of us feel that, given the clear and present danger, that it was justified. Some of us feel that things have been on the shelves
and therefore there was plenty of time to examine and the government just used the opportunity to push them through. Others
feel that's exactly what's wrong with them, that the government had this wish list. So, I just want to summarize where we are,
so, let's use this last segment to do exactly what you were going to do anyhow, and let's discuss maybe three specifics. One is
roving wiretaps and maybe the monitoring of e-mail and, I don't know, anyone of you can add one more, and then let's bring this
to closure and have some questions and answers.
STROSSEN: I'd like to pick up on Orin's point because when I'm asked, as I often am, why should people who are not even suspected
of any crime at all, let alone terrorism, be worried about this legislation, I use that as an example. Not only the Attorney
General, but every proponent of the law, uses the example that Victoria uses, which to me sounds very sensible. I think it should
be easy to tap the different cell phone numbers of a particular target. I would support that amendment and I think I can say I
speak for the ACLU in doing that because a cell phone is likely to be used only by that target or by very close associates of that
target so you're talking about an individualized suspicion. But the provision in the law goes wildly beyond that. It allows the
government to intercept any communications which are e-mail as well as web surfing, on any telecommunications device that a target
might use. So, especially if you're talking about a public facility such as the lab example that David gave at a university, or at
a public library or at a cyber café, it means not only the communications by the target are intercepted, but any communication on
any computer by anybody at any of those facilities.
TOENSING: But there's minimization requirements in all of the intercept of information. We all know when you have a wiretap, if
the butcher calls, the people have to shut down the machines. You know the minimization requirement is there, and certainly in
dissemination of that material, the minimization requirement is there.
SOBEL: But the problem with that answer is that those procedures are only examined when there's a prosecution and the suspect who
is named in the order might have the ability to question whether there was minimization. But if I'm an innocent user in a public
library whose communications are intercepted, I'm never going to have any oversight over whether or not there's minimization.
TOENSING: OK, but here's the problem. You know that you were told, you're the FBI, and you've been told that there are a group
of people who, we have reason to believe, are terrorists who are using the public library every night between seven and eight,
and you have information about them that they are members of a terrorist organization. Do you say, well, I'm so sorry, this is
in a public library, so we're just going to stay out because--this is immunity, go to a public library and you'll never be found.
KERR: Two points. One, I'm not quite sure on this, but my recollection, at least, is that the roving wiretap provision only
applies to wire communications not electronic communications. If that's not correct, though, the problem we have is exactly the
one we've always had. Great wiretapping cases from the past, great in the sense of famous. One would be Katz v. United States,
the one that every law student learns, from 1967. And that involves a tap on a public telephone. The same problem that law
enforcement had then is the same one they have now. People use different communications devices. The problem really hasn't
changed that much and if we can come up with a way of making sure the wiretapping can occur and minimize it, and narrow it,
so it's only the target, I think we'd all agree that's what we want to do. The difficulty here is a technological one, so let's
all look for solutions. I think it's tough in the abstract to criticize a law that says you can do this when the real difficulty
is going to be in the implementation.
TOENSING: But if I say there's an absolute prohibition against dissemination for anything else that's picked up, then David's
response is, well, but how do we know it's really being done unless a case comes up, and I don't really think that's the way
to address it.
STROSSEN: I can suggest some common ground here, I hope, and that is what Katz itself insisted on, and the minimization
requirements that you're talking about that were reflected in Title III, that is if we have strict, judicial oversight to
make sure that the search is confined as much as possible to the target of the intercept order. And that's why our overarching
objection, as David mentioned earlier, was not so much the government's expanded surveillance powers per se, but that the judicial
check that usually was there, that traditionally has been there to minimize the violation, the unjustified and unnecessary violation
of the rights of privacy of innocent, non-suspects, that the judicial check and balance has been taken away by this new law.
KERR: How exactly is that?
STROSSEN: Because the assertion, first of all, the standard to get an intercept order is so low.
KERR: How so? You mean specifically to get a roving wiretap?
STROSSEN: We could go into many different provisions, but for example, if a search has both intelligence purposes and intelligence
gathering purposes, and criminal law enforcement purposes, you can use the much lower FISA standard that is simply an assertion
that it's likely to yield evidence that's relevant to an investigation. And then there's nothing meaningful for a judge to review
because that's simply an assertion.
KERR: Are you referring though to a content surveillance or order or not content?
SOBEL: A very specific example with respect to roving wiretaps, is Senator Feingold had an amendment that he offered to the
roving wiretap provision. The so-called ascertainment requirement which would have required the government to demonstrate to
the authorizing judge that the suspect was in fact likely to be using the facility at the time that the monitoring was going to
occur. The Justice Department opposed that, the Senate rejected it.
TOENSING: Because you don't know. You have to be on the other side having lived through it, how do you know where the person's going to--
SOBEL: This is always the answer. That it's difficult so we shouldn't have to do it. The Attorney General in fact characterized
the judicial oversight requirements as bureaucracy. So, this in one of the overarching themes that's very troubling, that all of
a sudden judicial oversight is seen as bureaucracy.
TOENSING: But David, just so people don't go away from here not understanding, a judge, a court has to approve all the FISA taps.
You cannot get a FISA tap without judicial approval.
SOBEL: A court that has never rejected an application.
TOENSING: Oh no, that's not true. When it gets rejected--I've been there--when it gets rejected, you take it back and you either
make it better or you don't come back again. That's how it works in practice. You don't go to them unless you have this many papers.
And if they kind of turn their nose up at it, then you don't come back.
ETZIONI: I don't want this to close with some of you getting 1,000 e-mails, including from me, saying--really nothing changed
after 9/11. So far, we've heard two things. First of all, it seems that most of you, under certain circumstances, are willing
to live with the new roving wiretaps, or they may not be that new and they may go too far, but that's about one step ahead. And
also I heard that, I haven't heard anybody arguing that there was a basic change in the criteria, that the criteria stay the
same, as Victoria put it, the weight on one of the scales may be heavier. So, where does this take us? I don't hear a list of
six things, it was a fairly traumatic event, wasn't it? So business as usual? Full scrutiny, which means you're going to be
tough as possible, you the government?
SOBEL: Well, we haven't talked about secret searches of physical premises, police break-ins are authorized so long as at some
point down the road there is notification.
ETZIONI: I heard a good strong list of the new strong powers the government took to itself which some of you think are excessive
but I didn't hear a lot on the other side of the ledger so I don't want you not to have the opportunity in case you want to draw
a slightly more balanced picture.
TOENSING: You mean you're asking David and Nadine what changes they agree with?
ETZIONI: Well, yes, but the rest of you didn't get an enormous case.
STROSSEN: I think Amitai is saying that he didn't hear you argue in principle that we should have a more tolerant standard
towards invasions of privacy and I think that's very interesting because there is that old saying the devil is in the details.
And I think to me, one thing that's been interesting from the night of September 11th on, when President Bush's first words to
the nation invoked that freedom and opportunity and said this nation is the greatest beacon for freedom and no one will keep that
light from shining. And the ACLU's web site started saying safe and free, I think all of us are equally committed to safety and
freedom, to human rights and human life and we disagree with each other on the details of whether particular measures are actually
justified in terms of maximizing national security with minimal intrusions on individual liberty. But I think it's very significant
and, to me, encouraging that we're all asking the same questions.
ETZIONI: Well, that's a wonderful summary. Why don't we go down the list and let's begin our closing statements.
TOENSING: Well, I would not think that the standards should be changed. What changes are the facts and what law enforcement has
to deal with, and so that's why there are different law enforcement tools that need to be used today than there were before September
11th. Because all of a sudden, we're finding that learning how to fly a plane but not land it or take it off is a suspicious act, which
nobody thought was a suspicious act before September 11th. So, I don't know if we say the devil is in the detail or the case is in the
facts, but when you look at factual scenarios, then you use the same high standards we've had but you look at the facts much differently.
Certain facts are suspicious today that were not before September 11th.
KERR: I think that what has changed the most has been public perception. There is now an awareness of the threats. And law enforcement
has known about these threats for a long, long time and now the public realizes what the threats are and what I think has changed is
more public support. Whereas in the past, people would say I don't want the FBI reading my e-mail, now it's well, if the choices are
that there would be a one in a million chance the FBI is reading e-mail and I could be killed by a terrorist or something like that, it
changes the calculous and people are responding differently. Anonymity is an important value, anonymity was valued, but once people are
saying, why can't the FBI trace those anthrax letters, suddenly the idea of sending anonymous communications doesn't sound quite as
wonderful as it did before. I think we just have a better awareness now, but the basic framework is the same. The traditional rules
governing law enforcement investigations, intelligence investigations, are sound ones, we've had them for 200 years and they'll continue
to work pretty well if we're just aware of the technology and adjust the rules from time to time to respond to those changes.
SOBEL: I think a lot of old assumptions are being reconsidered and I would hope that part of that process will also go back to look at
what the real shortcomings were prior to September 11th. As I said before, I think we saw something of a knee-jerk reaction on the part
of Congress without really understanding what happened and what the failings were. So I'm hoping that there will, as time now allows, be
that examination of what these agencies did and what they didn't do, and I actually suspect that part of the answer will be, not that
these agencies didn't have access to enough information but in fact, technology, and the relatively lax legal standards prior to September
11th, allowed them to collect so much information that they were inundated with it and they didn't have the ability to process or analyze
the information. Let's do the analysis and really see who knew what and whether there really were impediments to them doing with the
information what they should have done. I have not yet seen a congressional hearing that looks at those issues and I think that's what
we need.
ETZIONI: Let me say here, as we move to questions and answers from the very patient audience that I'm endlessly grateful to the four of
you, not just for taking the trouble to come, but for being willing to engage in a very communitarian, very civilized, discussion.
Nobody charging the other one with seeking to shred the Constitution and doing the terrorists job for them, or that because of our
moral failings we invited the attacks by the terrorists and any of this kind of talk we sometimes find in these meetings or dropping
the kind of court of law tactics of charging the other one just stopped eating black babies last week and all kinds of other horrible
accusations as such and we really, I thought, had as good a conversation as we can have. I don't think in one hour we clarified everything,
but it seems clear from the end of the conversation that we have now a chance, hopefully there will be no other attacks in the near future,
to examine this question and see where we went too far, where we may have to adjust more. I'm going to give half a compliment to myself
because as some of you know, I have some views of my own on this and I tried to keep them out of the conversation as best I could. So thank
you very much. Maybe you'll join me in thanking the panel for their good work. We have a limited amount of time for questions, if you make
them brief we'll allow more people to ask questions.
AUDIENCE: I'm interested in communications technology and what the differences are. It's interesting to me that this is a panel
of all lawyers, and counsel, and so forth. But it occurs to me that one kind of thing that hasn't really been talked about is
what kinds of things are happening when you make the transfer from face to face communication to say electronic communication
and other kinds of things and whether or not in looking at how we might play off this public/private difference, if there might
not be some [??] so to speak in that area. For example, if you think about what happens when someone checks into an airline for
an international flight. You have to show your passport. The person checks your passport and you go on. They don't record your
passport, they don't record your visa, they don't do any of that at the checkpoint. Now you can ask, maybe we should be writing
down those passport things, but we're not. If you ended up asking people to enter that information online when they're buying
their ticket, then you suddenly have an inscription of what that passport number is, etc. So, think about that. On the other hand,
someone was talking about the diabetes example. For example an insurance company might want to send out paraphernalia or brochures
to all of the clients who have diabetes but not to those who didn't. So of course, the problem arises when you imagine that you'd
have something like a listserve of all the people who have diabetes and, therefore, you have this list which then can be used for
something else. But supposing it wasn't like that, supposing the information was encrypted so that everybody had a file and each
person's file was plus or minus for diabetes. You send this information to everyone and there's just a little blip in there, it
only goes to the people who have the pluses. This is just another kind of way of pushing that and I wonder if you have any reactions
or if anything is being done on this that you know of.
KERR: I think often technology can be the answer to that sort of a problem, in particular, people say I don't want people knowing
that I'm on a particular listserve, or I don't want people to know that I get these e-mails because they'll be able to identify
who I am and that's my private information. Go to www.hotmail.com or any free e-mail based service and enter in a false name and
say you're from Mars and say your name is Elvis Presley and there you have an e-mail account. And people can find out there was
an e-mail to jpw3-5, that way you're able to get the information and you don't have to reveal your identity. Often times, technology
can respond to that privacy concern, I think, more effectively than the law can.
SOBEL: But Hotmail has the actual IP address from which you connected so if the Justice Department wants that information they
can often get it.
TOENSING: I always have to give my passport number when I'm on an airplane, and they are required to put it down on a piece of
paper that somebody collects and goes somewhere.
ETZIONI: I think we shouldn't dismiss technology too quickly. Somebody else, please.
AUDIENCE: I was wondering what effect on privacy you thought any possible move towards more racial profiling might have. While it
might not make sense to pull over every person of Middle Eastern descent and question them and detain them, which seems to be happening
in a lot of cases, we're not sure how many have been detained or questioned, on the other hand it doesn't make all that much sense either
to treat six-year-old girls from France with the same sort of scrutiny as we would attach to a biochemical expert from Pakistan arriving
in the United States. So I was wondering how you think we should strike that balance and what effect it will have on, especially, minority
individuals who are going to be facing a closer look at points of entry, at airports, even walking down the street.
ETZIONI: Let me just say, as somebody who grew up in the Middle East, Middle Easterners are not a separate race, this is a loaded term
used by those people who want to whip up--let's call it ethnic profiling--that may be also a very bad idea, but it ain't racial.
STROSSEN: But it does share, at least, the major flaw in racial profiling, which is stereotyping, guilt by association, and therefore,
a violation of the cardinal principle of the Fourth Amendment, and that is that the government may only interfere with your freedom or
privacy based on individualized suspicion relating to you as an individual. And I think the genius of the Fourth Amendment is that the
individualized suspicion requirement both protects individuals from unjustified interferences with their freedom of movement or privacy,
the government has to have some specific basis beyond a mere stereotype for stopping them as an individual, at the very same token it
makes sure that the government is deploying its limited and overtaxed law enforcement resources in a rational way. It's just casting the
net too broadly, as we see, to engage in the mass kinds of investigations that are being undertaken now and I think it's very interesting
that respected law enforcement officers, including Ray Kelly, who is going to become for the second time, the police chief in New York,
is saying this is bad from a law enforcement perspective as well. Interviewing people for whom we have no basis for believing that they
have anything to do with terrorism, what a waste of time, and a violation.
TOENSING: On the other hand, though, I would be supportive, and I hope everyone on the panel would be, of the FBI going into the Arab
communities. We cannot deny that everybody on those planes was from the Middle East, if I can say that, because Saudi Arabia and the UAE
and Egypt, there were various countries...
STROSSEN: And Israelis are being detained too as we know, Israeli Jews.
TOENSING: Well, if it's on passport violations. But I'm making another point. I think that law enforcement cannot ignore the fact that
this is where it came from and so, should go to those communities in our country, talk to them, try to build relationships, and ask
them to help us. You wouldn't go to the Irish community in Boston to talk to them about finding the terrorists in this kind of threat,
although you would of course for the IRA, and I've never heard anyone complain about that. So, it seems to me that law enforcement
should reach out to those communities where terrorism came from, and ask them to help us and be a part of the solution. But I also say,
consider this, this isn't racial profiling, but we have past legislation that says if you are going to be an airport security person,
you have to be a U.S. citizen, and there's now going to be a lawsuit. I'm interested in whether you support that or don't support that.
ETZIONI: Let me just say, and I'll return to you in a moment, for good reason. If you want to open up a whole new subject about citizenship,
we can put it on the table of the topic we're going to have at our next Communitarian Dialogue, on immigration. Individualized suspicion is a
good place to discuss if the Constitution is a living document, which has to be adapted to changing historical times or if it just sits there
the way it was originally. The reason is that, if I understand correctly, unless you can go to a judge, assuming there are no special
circumstances, there is no hot pursuit, and you have compelling reasons to suspect that a particular person is about to commit a crime,
you cannot search them. Among the things that would go out the window then are the screening gates in airports because that's exactly what
they do. They are not based on individualized suspicion, they take millions of people every day, and search them. I thought there was a
point where the ACLU wasn't too happy with those either. So, don't the new conditions we face call us to examine the question if we can
always live with individualized suspicion these days?
STROSSEN: I think that one way that the courts have dealt with those mass relatively unintrusive searches is to call them administrative
searches that are not subject to the full panoply of Fourth Amendment protections. I just wanted to comment in response to that interesting
question, that we're talking about a very low-tech form of privacy invasion here and it's important not to forget that, as we keep talking
about the newfangled ones through technology. A police officer, an FBI officer coming to visit you on your campus if you're one of those
immigrant young men, Victoria, if it were done in the spirit of we're here to build community relations and that it clearly were consensual,
let's be clear about that, none of us would have any problems. And here again, I think we're disagreeing more about the facts than we are
about the principal. Because I am sure you would agree that if it were not consensual, if the person didn't understand that they didn't
have to answer the questions, then the government would need to get a search warrant or to have probably cause or individualized suspicion.
So I think we really disagree about the perception, especially on the part of an immigrant who is new to the country who may not be aware
of his or her legal rights, or his legal rights because we're talking about gender stereotyping here as well, and may have some language
problems, that this is probably going to be quite a coercive kind of experience rather than one that's--oh, I'm here as your friend to
build relations with you.
ETZIONI: In fact, in the past, some civil libertarians argued that there couldn't be a genuine consent for the reasons you just raised and
therefore would throw out the whole thing, terrorists or no terrorists.
AUDIENCE: In regard to oversight of the application of the Patriot Act, what is the prospect for either journalists or private organizations
to monitor its application. I know EPIC has had problems with FOIA requests from the FBI. I didn't know if there'd be any other potential
language within the Patriot Act which might make it difficult for outside organizations to monitor what law enforcement does.
SOBEL: Well, I think that's a very good point and it's one of the problems when we talk about new technology, which is that the government
is increasingly taking the position that the technology being used to conduct the surveillance is secret. And we have seen this in the case
of the Carnivore technology, for instance, that the FBI uses. My organization is in court under the Freedom of Information Act attempting
to get information on how Carnivore works so that the legal implications can be assessed and that information is being withheld. There is
a very interesting case pending in Newark right now involving the surreptitious installation of a device on a suspect's computer that
basically logged everything he did on his keyboard. Again, the government's position is the defense can't have access to that device because
it's classified. And now most recently there are reports that the FBI has developed a virus or Trojan Horse type program called Magic Lantern
that will be remotely installed on suspect's computers to monitor all activity on that computer. And again, I would anticipate that the details
of how this technology works and what it's actually collecting will also be withheld from the public. So I think oversight is very difficult
in this area because the government's position is we're using classified search techniques and that really is a new phenomenon that we haven't
dealt with before.
KERR: Although I would just add to that, the default rule has always been that law enforcement does not need to divulge the details of how
the search was executed. For example, the defense doesn't get to know what model crowbar was used to break down the door, or that a bugging
device might have been installed. Actually, it's a good example of where the Patriot Act actually enhances privacy protections because there
is a very important provision in the Patriot Act that whenever anyone installs Carnivore, they need to file a report with the court, and they
need to say when this device was installed, by whom, how it was configured, anytime the device was accessed they need to report who accessed
it, when, where, and also they need to file a report saying what information was collected using this tool. That's unprecedented, we've never
had anything like that. I think it's a very positive step because it responds to at least some of the privacy concerns that David has mentioned.
But it's an important provision of the Patriot Act.
SOBEL: I agree, it's a good provision, but it was not the Justice Department's idea.
ETZIONI: On that happy note, first of all, if you had any doubts that the devil and a blessing is in the details, I think you just got a
lively demonstration. Some of the members of the panel have other commitments, in fact, they overstayed the time we agreed to, so maybe
those of you who can stay, we can have some more informal give and take but at this point, let me thank one more time the panel and all of
you for coming. Thank you very much.
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