Privacy vs. Terrorist Surveillance

Privacy. Video surveillance. Intelligence sharing. Prevention of terrorist attacks. Take any of these terms, sufficiently controversial on its own, blend it with the others, and you will invariably generate a swirl of emotions that end up polarizing security and lay observers into opposing camps. Yet all connect reasonably and, taken together without extremes, can yield a useful, coherent approach to the anti-terrorism challenge facing today's democracies and their security practitioners.


Out of deference to my colleagues of Special Forces pedigree, I should note that what follows relates to anti-terrorism, that is, defending against terrorists -- not counter-terrorism, or taking the fight directly to the terrorists themselves. My friends who have suffered brutal selection and induction processes for the privilege of traveling to danger zones to chase those who slaughter innocents -- these people rightly claim counter-terrorism as their preserve.


Let's begin with privacy. Is it a right, a luxury, a cloak to mask petty crime, a tool for international terrorists to use against those whom they have sworn to annihilate? Answer: Yes, depending whom you ask. In countries with a Western tradition, privacy is a value tied to the presumed sanctity of the home and natural territoriality. In such societies, we generally act as if people have a right to do as they please, in private. But how far is our society willing to support this value? Is it inviolate? Is this an absolute whose violation would spell the end of our society? One need only consider a few modern scenarios to see that even the staunchest supporters of such a position would struggle to offer a 100% defense.


Medical information merits a good deal of protection and is generally treated as among the most deserving of privacy. Yet our own laws governing health care professionals compel them to reveal the most imtimate confidences. In the face of any evidence of a violent crime or of child abuse, for example, they must alert authorities or themselves face sanctions. Which privacy advocate would reverse what our society accepts as a higher obligation? Yet the same citizens willing or eager to endorse the bowing of privacy to the thwarting of child abuse often close their eyes to this: terrorist targeting for acts resulting in massive fatalities makes the same claim on privacy as child abuse and spousal beating. The natural, security argument would be that anyone deeply involved in anti-terrorism, let alone counter-terrorism, should not be hamstrung by privacy protections that are abused by ruthless adversaries plotting against us. Reasonable people, particularly if themselves threatened or victimized in the past, will sympathize with this view. What gives reasonable people pause, though, is any skeptic's experience with giving too much license to authorities who are, after all, fallible, human, and just as likely to overstep as anyone given too much power without enough checks and balances. So, let us postulate some middle ground on the privacy debate that will answer valid conserns of skeptics without neutering legitimate efforts to thwart terrorist plots before they are realized.


Postulate 1: Suppose we agree that privacy is an important value, but not a shield behind which to carry out great harm. We then say that any governmental breach of privacy must be subject to checks and balances, and that absent those checks and balances, what surfaces as the result of a privacy breach may not be used against the individual. Period. At the same time, though, while such information may not be used for prosecution, we apply no such restraint on interdiction. In other words, if you plot to assassinate the president, blow up a school, or release sarin gas in a subway and I as a federal officer learn about it through a means that violates due process and your privacy, I may not be able to use that against you in legal proceedings. But I should definitely be able -- even obligated -- to use that information to stop the attack from taking place. After all, as George Will observed,


"Public safety is the public's business. Public authorities take the lead and some of them work at it full time. However, at all times, and especially in times like these, it is every citizen's business."
Sunday 11-4-01
Washington Post


Next we look at video surveillance, a proliferation in our industry, and a growing part of modern life. Britain, arguably the most well known employer of video surveillance in an urban setting, London, proved the societal value of exploiting CCTV to round up transit bombers in 2005 before they could turn bus and subway terrorist attacks into a campaign. A camera watching over activities that occur in public places is, according to most courts, no violation of privacy. But it is always possible that even publicly available information could be misused for personal gain. If a surveillance technician uses public cameras to stalk a former spouse or to track a future robbery victim on the way to the bank, such action would be wrong and should be punished. This brings us to,


Postulate 2: Any activity taking place in public space is by definition not private, hence subject to video surveillance. But there should be some form of check and balance, as well as an appeal and review process, to keep such surveillance from being misused.


In the final analysis, privacy can be cherished and respected without being sanctified. The same applies to surveillance for the public good. Too much of either, unchecked, creates exploitable opportunity for foul play. But a reasonable balance is possible. It takes work. Calibration in social enterprise requires an infinite capacity for monitoring the dials and making adjustments, normally small adjustments. And when a crisis occasions a major adjustment, that change should come with the safeguards of a built-in sunset provision and unbiased oversight to defend against abuse. Otherwise, as James Thurber once observed, you may as well fall flat on your face as lean over too far backwards.

– Nick Catrantzos