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Homeland Security and Digital Privacy
Guest: ACLU's Barry Steinhardt
Wednesday, June 19, 2002, 11 a.m. EDT
Barry Steinhardt is the Director of the American Civil Liberties Union's Technology and Liberty Program. He has been a staunch critic of efforts to broaden governmental surveillance powers and weaken privacy protections in response to terrorist threats. Steinhardt co-founded the Global Internet Liberty Campaign (GILC) and at one time served as President of the Electronic Frontier Foundation.
Submit Your Questions and Comments: Steinhardt will be online at 11 a.m. EDT Wednesday discuss the impact of the electronic surveillance provisions of the USA Patriot Act on personal privacy. The discussion will be moderated by washingtonpost.com tech policy reporter David McGuire.
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David McGuire:
We're joined today by Barry Steinhardt, the Director of the American Civil Liberties Union's Technology and Liberty Program. As the ACLU's lead advocate for protecting constitutional rights in the digital world, Steinhardt spearheaded the organization's attack on the USA Patriot Act. Passed by Congress in the wake of the Sept. 11 terrorist attacks and signed into law by President Bush last year, the Patriot Act removes many of the fetters restricting how law enforcers conduct electronic surveillance on terrorism suspects.
David McGuire:
Thank you for joining us Barry. The ACLU and a clutch of other public interest groups vehemently opposed many provisions of the Patriot Act. To your mind, what are the most objectionable aspects of the law and why?
Barry Steinhardt: Thank you for inviting me. First, the name "Patriot Act" is a cruel irony. There can nothing less patriotic than an assault on our most fundamental values. There are many such assaults in the Act. My focus has been on the surveillance provisions. The theme, that runs throughout the law is the destruction of the normal checks and balances that keep our police and intelligence agencies from spying on us without, at least, minimal supervision from the courts. For example, the FBI can now monitor Internet traffic, including what is really the substance of your thought like the web sites that you are visiting, using a so-called pen register order merely by asserting to a court that their trolling is "relevant" to a criminal investigation. They are not required to present any proof to the Court, which has to rubberstamp the order.
Alexandria, Va.:
Today's Post carries an interesting story about an Australian libel case being closely followed because it stands to apply stricter libel laws to the Internet. Is the ACLU tracking the case? How big a threat is this to cyber-liberties?
Barry Steinhardt: I am not specifically familiar with the Australian case, but we have been involved with the French case involving Yahoo. A French court found that Yahoo violated French law because servers in the US violated their "hate" speech provisions. A Federal Judge in California correctly ruled that the US First Amendment bars enforcement of foreign court orders if they violate our First Amendment. That is extremely important principle. 50% or more of all Internet traffic still flows through the US. If every nation could impose their own view of acceptable speech on the US, then all that would be left is the innocuous pablum of the lowest common denominator of acceptable thought. The Internet would lose all of its vitality.
Los Angeles, Calif.:
The intelligence community has been chomping at the bit to put into place anti-civil liberty technologies for some years. The reality is Sept. 11 has simply provided an excuse to ram through these measures through Congress.
Considering Sept. 11 was caused by human failures at the FBI, CIA, INS -- not technological -- has anyone in Congress tried to put some limits on what type of surveillance systems are put in place? Or does the FBI, CIA, NSA pretty much have a rubber stamp and blank check?
Barry Steinhardt: You are quite correct that the FBI and the intelligence agencies are now using powers that they have sought for years and that we now know that they utterly failed to understand or act on the information they had already collected.The cruel irony here is that most of these new powers to engage in surveillance on and off line can be used in any "criminal" investigation. The investigations do not need to be related to an action that is even remotely associated with terrorism.
Washington, DC:
Are there any bills in Congress to try to
correct some of the wilder constitutional
violations in the Patriot Act? Will they succeed? How does Bob Barr feel about all
of this?
Barry Steinhardt: The Congress is only now beginning to excercise its oversight authority. Rep. Barr is one of those leading the charge to do so. I don't know of any specific bills to correct the deficiencies in the "Patriot" Act. We can hope that there will be real oversight. The surveillance provisions of the Act do "sunset" (expire) in 5 years. They will require Congressional reauthroization. By then, I expect that the inevitable abuses will have begun to come to light. History teaches us that the government frequently and futilely tramples on rights during times of crisis -- for example, the internment of loyal Japanese Americans during WWII and then later comes to regret it. These are similar times. I expect there will be apologies handed out 5 or 10 years from now, but they will be cold comfort to those who are having their rights abused now.
Kalamazoo, Michigan:
Do we have the same rights online to state our beliefs, even if most people might not agree with them, or can we be prosecuted or put under suspicion because we make a statement that might, say, support terrorism?
Barry Steinhardt: You have an absolute right to state your beliefs online, even if they are unpopular. There are some limits on speech which is connected to criminal activity, for example, an extortionist threat, but simply stating your views is not a crime.
That said, you are right to ask if unpopular speech will bring you under suspicion. Both the surveillance provision in the "Patriot" Act and Attorney General Ashcroft's new domestic spying guidelines open up the very real prospect that the FBI will return to the pre-Watergate days, when political dissenters ranging from Dr. Martin Luther King to average largely unknown Americans, were routinely spied on or had their lives disrupted.
David McGuire:
With Patriot enacted, what can the ACLU do to combat increased electronic surveillance by law enforcers? Can you challenge Patriot on its face or do you need some sort of test case?
Barry Steinhardt: Dave-- Their are many sections of the "Patriot" Act that will be tested in the courts. Unfortunately, these tests are likely to come in criminal cases only when someone is prosecuted.The countless innocent Americans who will be spied upon will simply never know. Regretably, the doctrine of law that allows you to challenge an unconstitutional law
"on its face", before it is enforced largely applies to First Amendment (Free Speech) cases. It is much harder to use here where the challenges will be under the 4th Amendment, which limits the government's search powers.
In the meantime, we are trying to reach out to both providers and users of the Internet and are prepared to file cases if the right facts present themselves. In a time of secret government it is hard to know when the abuses will come to light.
Boca Raton, FL:
This may seem very silly and sound paranoid..however, my concern is the following:
1. While dicussing politics on the chat boards and being a liberal who argues against Ashcroft's policies, would there ever be a chance that files would be kept on those of us that engage in these debates?
2. Do you think there is a possibility that the FBI would track what sites you visit?
3. Can you tell if the FBI is monotoring your personal electronic communications
4. Can you tell me to not be concerned about the whole thing if I am just debating?
Barry Steinhardt: Your question is not silly or paranoid at all. The Attorney General's guidelines do give law enforcement broad authority to troll the Internet. They are not required to have even a scintilla of evidence that a crime has been or may be committed before beginning their trolling.
While the guidelines say that individual names can only be searched when they are "incidental" to the "topical" research that is being done on the Net that provides very litle protection. Certainly, your name or other identifier on this chat is incidental to any search related to the matters we have been discussing. Of course, I am not saying that the FBI is monitoring this chat or taking names, but it certainly appears to be withing their new powers.
Arlington, Va.:
Is the ACLU pragmatic or absolutist on the issue of cyber-liberties? Is there any ground you're willing to grant to law enforcement when it comes to tracking down terrorists or ordinary criminals?
Barry Steinhardt: We are the ultimate pragmatists. We believe that before the government employs any new surveillance technique or power that it first has to answer the question" will it make us safer". If the answer to that question is "no", there is no need to even debate the civil liberties issues.
The illusion of security,itself, is a grave threat to our safety.
For example, police and security forces in airports and even on the streets of Tampa Florida and Virginia Beach are using "face recognition" technology to try to match surveillance photos with earlier photographs of the bad guys. This technology poses a great threat to civil liberties because the images can be captured surreptitiously and used to track the movements of ordinairy people.
But the dirty little secret is that the technology doesn't work to make us any safer. Both in labratory and in real world tests there is a very high error rate that result in the bad guys eluding our security and innocent people being confused with a terrorist or other criminal. Beyond that, we simply don't have a photgraphic database of the terrorists. There is nothing to compare the photos taken at an airport on the street to.
Silver Spring, Md.:
What's it like being allied with a guy like Bob Barr who probably does not share the ACLU's position on lots of issues other than cyber-liberties? David McGuire:
Georgia Republican Bob Barr is a conservative who typically takes a staunch stance against increased government surveillance.
Barry Steinhardt: The ACLU is relentlessly non-partisan. There are, of course, many issues on which we disagree with Mr. Barr, but that does not stop us from working closely with him when we think he is right. Nor would we hesitate to oppose an action of one of our usual allies if we think he or she is wrong on the merits.
We don't feel any embarrasment about this and think that our freinds and foes alike respect us for it.
David McGuire:
Law enforcement advocates say that they need expanded surveillance powers if they're to have a fighting chance at identifying terrorist plots before they're carried out. Given the largely undisputed importance of fighting terrorism, how do you respond to law enforcers' claims that they need better legal tools to fight sophisticated and well-financed terrorists?
Barry Steinhardt: Law enforcement already had extraoridnairy powers to fight terrorism. What we have begun to learn through the most recent leaks from within the agencies and the few details that have come out from the Congressional hearings is that the real problem was not the absence of power. It was the inability to use or understand the information they already had. Giving them more power to collect increasingly extraneous information or to engage in what will inevitably be political abuses, only worsens the problem.
DC:
Jose Padilla travelled around the world for over a year with no known job or source of income. His computer in Pakistan contained information on how to build and detonate dirty bomb. Assume he was tried. He really couldn't be convicted of anything, and even if he could, he would recieve minimal jail time. Why does the ACLU support releasing this guy instead of holding him forever so that he cannot accomplish his objective of killing Americans, including members of the ACLU. Why does the ACLU want to wait until after he explodes a dirty bomb in order to hold him?
Barry Steinhardt: We don't support "releasing him". We have no way of knowing whether the government has evidence tying him to criminal activity.
We do support his right to a day in Court.If the government has evidence of criminal activity then they should charge him and allow him to be represented by a counsel and contest the charges.
Earlier trials involving, for example. the first World Trade Center bombing demonstrated that our courts are capable of handling sensitive cases in a way that is fair to the defendants and protects our security.
If Padilla really was a "dirty bomber" as AG Ashcroft suggests -- others in the Administration have begun to cast doubt on who Padilla really is-- then charge him.
David McGuire:
Unfortunately, our time is up. I'd like to thank Barry Steinhardt for joining us and all of today's readers for submitting thoughtful, well-informed questions.
David McGuire:
That wraps up today's show. Thanks to everyone who joined the
discussion.
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