Seeking middle ground on privacy vs. security

Since Sept. 11, discussion has swirled around whether Americans have sacrificed too many rights to shore up national security. As I see it, much of the debate around this question started out on the wrong foot, the same foot on which the Luddites tried to stand.

The debate has focused on which types of surveillance technology should or shouldn't be allowed for arresting terrorists. The proper question is: How are these devices going to be used, and how closely are those who use them held accountable?

Consider a new and little-known law-enforcement tool, Magic Lantern. It is one of the latest government solutions to a pesky problem posed by software programmers in the 1990s who developed a high-power encryption software with such success that even the National Security Agency couldn't decode it. Initially, the government tried to prevent the encryption software from being sold overseas (where it would be readily available to terrorists).

However, Silicon Valley companies argued that if the US did not to sell it, someone else would. Civil libertarians maintained that unbreakable encryption is essential to protecting cyberspace from government intrusion. Others argued that the threats from terrorism are greatly overstated. As a result, top-of-the-line encryption was made available to one and all.

In response, the government first developed the Key Logger System, which, once installed on a computer, captures the password for the encryption software as the user types it in. But it required breaking into a suspect's home to install the device. Magic Lantern accomplishes the same thing remotely, by sending the program to a suspect's computer like a virus. But now many civil libertarians are crying "foul," seeing Magic Lantern as one more threat to privacy.

It is wrong to look at Magic Lantern and similar security devices as good or evil. As with all technologies, the proper question is how it will be used. For instance, if evidence about a suspected terrorist is presented to a court of law, Magic Lantern should be allowed to decode the suspect's messages. But if it is installed at the discretion of every cop on the beat, the rights of many innocent people could be violated.

The same holds true for Carnivore, a program the FBI rolled out, which enables it to monitor Internet traffic to determine if there are unusual patterns. It can also sort through billions of sent e-mail messages and pull out specific messages for analysis. Carnivore is a handy law-enforcement tool if duly authorized and properly minimized. But if agents are allowed to work it at will and share the information with agencies such as the IRS or INS, Carnivore will devour a good part of our liberties.

Surveillance cameras, biometrics, and EasyPass cards at tollbooths raise another issue of accountability: the difference between one-time screening and storing the information. Determining whether those who are being surveyed are on the terrorists watch list is not the same as making a database of where they are going, where they have been, with whom, and what they wore.

Surveying masses may well be unavoidable in the post-Sept. 11 world. But keeping information about innocent conduct by innocent people poses a massive threat to privacy.

Who should ensure proper use of these technologies? Supervisors? Inspectors general? An independent review board? A special congressional committee? There are some (including me) who favor all of the above. But some civil libertarians feel that one simply cannot trust the government, even the courts. To those I say, you should work to change the government to make it trustworthy rather than seek to hobble its antiterrorism efforts by denying it access to new technologies.

I served on a bipartisan task force, sponsored by the Markle Foundation, that studied the tension between national security and rights. Last week, the committee released a 173-page report that basically said there can be too much accountability, just as there can be too little. If FBI agents fear to ask for a search warrant because doing so might damage their career, as happened in the case of the "20th hijacker" Zacharias Moussaoui before Sept. 11, then controls are set too tightly. Since then, they may have been much too relaxed.

I realize that to call for accountability and for making it neither too tight nor too loose makes for fewer headlines than rallying around our loss of privacy or tarring anybody who questions new law-enforcement tools as aiding and abetting terrorists. But it is the place reasonable arguments will be found, in between the voices most often heard – the extremists on both sides.

• Amitai Etzioni is the author of 'The Limits of Privacy' (Basic Books, 1999).

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