Thursday, August 10, 2006

The Brave New World sort of sucks

Two things strike me about the (hopefully) foiled London terrorist plot - and not for the first time. First, technology has enabled small groups of people to be enormously destructive. Second, our traditional notions regarding the balance of civil liberties and protection of the public don't take that into account. We have generally thought that the government may not invade a person's "privacy" (however that may be defined) until it has a justification rooted in a particularized suspicion about that particular person. Once that justification is established, however, substantial encroachments on his or her privacy are permitted. Although the law does recognize lesser invasions for lesser reasons, our rules focus on individualized suspicion and have an "all or nothing" character about them.

The new world may require rethinking this. It may be that lesser invasions of persons' privacy (say computer - as opposed to human - monitoring of cell phone calls) are, under certain circumstances, going to have to be based upon reasonable probability as opposed to individualized probable cause. Civil libertarians are right to suggest that this creates real risk of abuse, but the debate may have to be about how to protect against those abuses, rather than to insist upon 20th century notions of what and when the government can search in a 21st century world.

31 comments:

Seth Zlotocha said...

I agree, Rick, these changes to how we view civil liberties may need to happen. But what can't change is how we go about making those decisions. They still need to be made in an open, democratic fashion, not behind the closed doors of the Oval Office (or, more accurately, whereever it is Dick Cheney lurks in or below the White House).

Mixter said...

Britain apparently thwarted the plot through use of normal police and intelligence methods. Why should civil liberties have to change? To paraphrase Mr. Franklin: Those who would give up liberty for security deserve neither.

Mixter

jp said...

Terrorist and intelligence methods are by their nature not apparent.

Rick Esenberg said...

Mix

The point is not whether to have civil liberties, but how they are to be defined and protected. You should not assume that the law in the UK is the same at is here.

I kind of agree with Seth, although the Patriot Act was an attempt to that - as would be litigation over the scope of the President's national security powers and the briefing of congressional oversight committees.

My point is that an adamant commitment to the categories of the past (of which I am also fond; having been trained in them) may not be wise.

Anonymous said...

When lawyers agree that it's time to let go of civil liberties, the terrorists are on their way to winning.

Dad29 said...

Uhnnnh, Mix--it was NOT just a James Bond MI5 agent. There were wire-transfer intercepts and some telephone stuff..

You know, what the NYSlimes writes about...

Mixter said...

dad29, that sounds like normal intelligence methods to me. You have some "in" where you know that Britain did these things illegally?

Rick, I understand where you're coming from. And, most of us would have nothing to fear from a lightening up of surveillance methods, etc. However, the potential of the abuse of power is a very real and frightening thing. I have to agree with anonymous: To lose freedom does mean in some degree that the terrorists have gotten their way. President Bush himself has said on many occasions that the terrorists can't stand freedom. So why fight them by taking it away, even a little, from Americans? It seems to defeat the purpose.

Mixter

Rogersykap said...

Uhnnnh, Mix--it was NOT just a James Bond MI5 agent. There were wire-transfer intercepts and some telephone stuff.. You know, what the NYSlimes writes about...

Tonya Craig said...

Terrorist and intelligence methods are by their nature not apparent.

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