HLSS508 Week 8 Information Technology and Legitimate Privacy Discussion How does the nation resolve the tension between information technology and legitima

HLSS508 Week 8 Information Technology and Legitimate Privacy Discussion How does the nation resolve the tension between information technology and legitimate privacy interests? Can the nation truly prevent government from having access to data while enforcing electronic accountability if data is misused? Does making technological choices at the intersection of privacy and civil liberties protection with national security require tradeoffs? How is it possible to strike a balance or weigh the trade-offs between security and freedom? Is it justified to have civil liberties and personal rights interfered with for the sake of national security? Instructions: Fully utilize the materials that have been provided to you in order to support your response. Your initial post should be at least 500 words. BOOK REVIEW
A Knowledgeable Insider Warns of the Challenges in
Shaping Counterterrorism Policies
SKATING ON STILTS: WHY WE AREN’T STOPPING TOMORROW’S
TERRORISM. By Stewart A. Baker. Hoover Institution Press, 2010.
Pp xi, 370. $19.95
*
Reviewed by John H. Shenefield
Stewart Baker has written an enthralling, yet alarming, account of the
1
difficult road we as country have traveled since 9/11. Part memoir of a
veteran senior government official, part lesson in interdepartmental
infighting and bureaucratic power games, part philosophical musing on
technology’s benefits and potential costs, and part vigorous advocacy
enlivened by saucy humor and snappy prose, Baker’s book summons us to
think hard about how new technologies – air travel, computer functionality,
biotechnology – jeopardize our lives and our way of life even as they also
promise to brighten our futures. Standing athwart history and denying
society – and its government – the right of access to technology’s huge
payoffs will not do and can never be successful in the long run. Baker
argues, therefore, that a privacy policy that tries to lock down technology
makes no sense. It would be far better to acknowledge that new
technologies will over time become accessible to all, and to allow the
government under strict rules of accountability to use technology to create
protective systems to prevent, or blunt, horrific terrorist attacks in the
American homeland.
Baker has studied these issues close up from a unique perspective. He
is a recent example of the hallowed Washington institution of the
“revolving door,” and is one of the best demonstrations of that institution’s
efficacy. His prosperous big-firm law practice has regularly been
punctuated by important stints in public service, much to the nation’s
benefit. He served as general counsel of the National Security Agency
from 1992 to 1994, and then as general counsel of the Robb-Silberman
Commission investigating intelligence failures in the run-up to the Iraq
invasion. Most recently, he was the first assistant secretary for policy at the
Department of Homeland Security from 2005 to 2009, where he grappled
first-hand with the impact of technology on national security and privacy
* Adjunct Fellow, Hudson Institute; Associate Attorney General (1979-1981) and
Assistant Attorney General (Antitrust) (1977-1979), U.S. Department of Justice.
1. STEWART A. BAKER, SKATING ON STILTS: WHY WE AREN’T STOPPING TOMORROW’S
TERRORISM (2010).
465
466
JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:465
policies and the balance between these values. Now back in the private
sector, Baker in this book reflects on all that he has just seen and
experienced, laying out the lessons he has learned for the edification of his
fellow countrymen.
Tellingly, the book opens with a moving account of Baker’s personal
pilgrimage on a rainy afternoon just after the Bush administration had left
office to the memorial for those who died at the Pentagon on 9/11. He
stands in the rain, musing about his struggles – some successful, some
unsuccessful – to improve border and homeland security, frequently against
the stubborn opposition of industry, foreign governments, and especially
civil liberties groups and privacy advocates. He remembers how he had
2
supported the creation of the “wall” between law enforcement and
intelligence before he left his NSA post in the mid-1990s. Although
believing that the civil liberties dangers that the “wall” was supposed to
prevent were exaggerated, he saw no great harm in the proposal, which was
widely popular, especially among privacy advocates inside the Beltway.
But all that changed on 9/11 when “the world outside the Beltway broke
3
through, just a few yards from where [he was] standing.” Baker reflects:
I’d chosen not to fight these entrenched interests in the 1990s.
When I left the National Security Agency I’d written a long article
that endorsed a wall between spies and cops. I’ve spent years
undoing that mistake.
Now I am leaving government again, and writing again – and
hoping to keep others from making the same mistake.
Call it a gift of memory.
4
Baker’s purpose in the book is to highlight the great evil that certain
powerful and very popular technologies could cause if they fall into the
wrong hands. To ward off such a calamity, he recommends that the
government make itself smart enough to take sensible steps to defend the
public. But in Baker’s world certain groups are almost reflexively opposed
to many of these steps. First, there is private industry with its sharp eye for
avoiding additional costs to the bottom line. Then there is the opposition of
certain foreign governments, often suspicious of U.S. government actions,
particularly those taken as counter-terror measures. But the primary
villains of the piece are privacy advocates, whose single-minded and – in
Baker’s mind – short-sighted pursuit of privacy protection threatens to
2. See id. at 5 (“With a wall . . . criminal investigators from agencies like the Federal
Bureau of Investigation (FBI) would be forced to observe the legal restrictions that went
with criminal investigative tools. They wouldn’t be tempted to take the shortcut of using
intelligence that had been gathered [by the National Security Agency] with less attention to
civil liberties.”).
3. Id. at 6.
4. Id. at 10.
2010]
SKATING ON STILTS
467
make government stupid and incapable of preventing terrible danger to U.S.
citizens. Baker believes that such short-sightedness cost thousands of lives
on 9/11 and will do so again if allowed to prevail.
After Baker joined then-Secretary Michael Chertoff at the Department
of Homeland Security (DHS) in 2005, he came to believe that 9/11 had
been caused as much by technological change as by evil men. His
conclusion is that long-term trends in technological development – like jet
travel – could teach us a lot about lethal dangers to the homeland that need
urgent attention before they got out of hand.
Certain technologies give human beings a power and freedom that are
liberating. The process of exponential technological growth is “like skating
5
on stilts that get a little longer each year” – hence the book’s title. With the
passage of time, as the tools available to us get faster and more powerful,
we’re also a little more at risk. This is because technologies that enrich the
lives of the average American also empower Osama bin Laden or the
Unabomber Ted Kaczynski. This potential for great evil is inherent in
access to the technology from the start. Baker contends that if only we had
the imagination to see the danger, we would be able to prevent it. And so
Baker asks: where else is our imagination failing us? Two new technologies
seem to be prime candidates for urgent study and action: computer
technology and bioengineering.
But first he takes the reader through the painful lead-up to 9/11. Baker
catalogs the exponential growth of the international airline industry – 28
billion kilometers of air travel in 1950 had grown to three trillion by 2000.
The result was that gradually – and inevitably – a revolution in border
control took place. No longer were the old security measures adequate.
The Visa Waiver Program, introduced in 1986, had steadily expanded so
that by 2001 more than a million visitors a month were coming to the
United States without visas. Any pretence to even modest vetting had been
abandoned. Thirty seconds at immigration control was the outside limit for
each arriving passenger, perhaps even less at JFK, Dulles, or other busy
airports.
Baker then asks, logically, why an alternative was not developed so that
the thirty-second arrival interview was not the last and only line of defense.
Why, for instance, could information on each passenger not be gathered in
advance, perhaps while the plane was still in the air? Immigration
authorities, armed with such information could then decide who should be
pulled aside for secondary screening. But that would require information
not just from the passengers, but from across the U.S. government and from
other governments as well. In short, what was needed was more and better
information, and it was all needed sooner.
5.
Id. at 17.
468
JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:465
One last step was required to deal with those who attempt to defeat the
system by changing identities. It would be necessary to strengthen the
security standards for passports and require fingerprint records so that
terrorists could not use multiple passports to enter the United States.
It all seemed so obvious once one thought about it, says Baker, but he
recounts a fierce struggle to achieve even modest gains in border security
against opposition to change. Proposals to give the government more
timely access to sensitive information were especially controversial.
Opposition came from businesses whose profit margins depended on the
status quo, the privacy lobby representing both the left and the right of the
political spectrum, and the international community. Baker is proud that
DHS was eventually able to make revolutionary progress in securing the
borders after a lengthy struggle both within the U.S. government and with
those outside it.
But despite the deaths of three thousand human beings on 9/11, the
opposition to revamped border security procedures very nearly prevailed.
The question Baker poses starkly throughout his book is whether we can
learn lessons from the border protection struggle, and apply various
carefully thought-out procedures to secure other technologies such as
information networks and biotechnology, and thus avoid catastrophes far
worse than 9/11. He concludes that he’s not at all sure that we can.
Persuading the different agencies of government first to gather and
second to share sensitive information is one of the hardest nuts to crack.
The story of the construction of the “wall” between law enforcement and
intelligence investigators in the world of electronic surveillance – with law
enforcement highly regulated by the courts and intelligence investigators
less so – is now sadly familiar, but Baker tells it well and with some
provocative commentary thrown in. He describes in some detail the
blurring of the dividing line. For example, there is the notorious episode
involving the prosecution of Soviet spy Aldrich Ames. When prosecutors
received evidence derived from an intelligence investigation physical
search without benefit of a court warrant, their case became vulnerable and
potentially embarrassing. They quickly settled for a plea bargain, approved
by the attorney general, for a sentence short of the death penalty.
The whole shambolic experience had almost been a disaster for the
Department of Justice, and as a result created a renewed determination to
keep the prosecutors and the intelligence investigators apart. For its part,
the Foreign Intelligence Surveillance Court (FISC), already feeling
defensive in the face of accusations that it was a rubber stamp supinely
carrying out the will of the executive branch, was determined to provide
strong protection to civil liberties. It had a powerful ally deep in the bowels
of the Justice Department, the Office of Intelligence Policy and Review
(OIPR), which was the liaison and gatekeeper between the intelligence
investigators and the FISC. In the wake of the Ames case, OIPR tried to
harden the informal wall, and thus there ensued a series of struggles
between Main Justice, OIPR, prosecutors in the Southern District of New
2010]
SKATING ON STILTS
469
York, and the FBI. As Baker characterizes it, OIPR seemed gradually to be
losing the bureaucratic struggle when the FISC staged a coup.
If Justice lacked the heft to enforce the wall guidelines, perhaps the
FISC could supply the muscle by simply turning department policy into
court-ordered rules that would be imposed on any intelligence surveillance
approved by the court. The wall evolved from a matter of policy to an
object of law. The FISC was determined to enforce it strictly.
On several different occasions, the court discovered that the wall had
failed to do its job because of what the court perceived as FBI misconduct.
False affidavits seemed to have been filed in several instances;
investigations were ordered; and in one case an FBI agent was prohibited
from presenting any further affidavits to the court – ever – well nigh a
career-ending sanction. The court had intended to send a message to the
FBI and the prosecutors: there are rules, so obey them or suffer the
consequences. The “wall” was the law, and the law meant what it said.
At the end of August 2001, word came that a major al Qaeda operative
had entered the country. Since the tip had come from the intelligence
community, only the intelligence investigators at the FBI could address it.
Notwithstanding the urgency of the information, FBI lawyers who insisted
that the wall be strictly maintained thwarted attempts to bring in the much
greater resources of criminal investigators. As Baker says, the underresourced intelligence investigators, without any assistance from the rest of
the Bureau, were still looking for the al Qaeda operative when “September
6
11 dawned, bright and crisp.”
But that wasn’t all. Baker argues that had the FBI been able to gain
access to data in the airline reservation system, as many as eleven out of the
nineteen hijackers could have been located. It was possible, according to
Baker, that a twelfth hijacker could have been found through access to an
INS watch list for expired visas, and that even the remaining seven could
have been turned up by matching addresses and following obvious
investigative leads.
And here we come to the essence of Baker’s take-away from 9/11, the
text that forms the basis for the book’s main argument:
It’s foolish to write rules for government to protect against
hypothetical civil liberties or privacy abuses, and even more foolish
to enforce those rules as though they matter more than the security
mission.
I grew deeply skeptical of efforts to write new privacy limits on
government in the absence of demonstrated abuses that required
6.
Id. at 69.
470
JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 4:465
new limits. We should not again put American lives at risk for the
7
sake of some speculative gain in civil liberties.
Of course, Baker would certainly admit that this formulation is
somewhat simplistic. How much “risk,” how “hypothetical,” and how
“speculative” are questions the reader is entitled to ask. Those very
questions confront policy-makers head-on whenever the most difficult
national security questions arise. How much of our civil liberties must we
put at risk to protect our national security, and is there a presumptive
answer in the closest cases? Baker would contend that while there may be
measures to protect against avoidable civil liberties abuses, those
precautions should not deny the government timely access to information
where denial has a plausible national security cost. Baker is unwilling to
indulge in the fatuous observation that security can be protected without
sacrificing any civil liberties – a familiar “mother-and-apple pie” line that
never fails to evoke applause in certain circles. In the real world, he would
point out, difficult choices have to be made – sometimes very quickly, often
with incomplete information, never with metaphysical certainty – every
day.
Most of the narrative is taken up with accounts and anecdotes about the
choices that were presented to the government, and to him, in his most
recent tour. They vary from the ludicrous to the terrifying. An example of
the first was what Baker describes as an immense outcry when police at
Logan Airport in Boston were given hand-held computers. Police use of
the devices was then hyperbolically characterized by the executive director
of the Massachusetts ACLU chapter as “‘mass scrutiny of the lives and
activities of innocent people,’ and ‘a violation of the core democratic
principle that the government should not be permitted to violate a person’s
privacy, unless it has reason to believe that he or she is involved in
8
wrongdoing.’” But Baker points out that the handheld computers were
linked only to public databases which any private citizen could search.
Perhaps indulging in a bit of hyperbole himself, he wryly observes that “the
ACLU seemed to think law enforcement should live in 1950 forever” and
9
that “we’d better not tell them we also have access to the White Pages.”
At the other end of the spectrum is his assessment of the national
security implications of “synthetic biology.” Put simply, Baker estimates
that the chance that the world will continue to remain free of the scourge of
smallpox – which had been erased from nature by systematic vaccinations –
is close to zero. Such is the exponential improvement of biotechnology that
“[w]ithin ten years, any competent biologist with a good lab and up-to-date
7.
8.
9.
Id. at 72.
Id. at 27.
Id. at 28.
2010]
SKATING ON STILTS
471
DNA synthesis skills will be able to recreate the smallpox virus from
10
scratch.”
Baker believes that inevitably this technology, like others that have
become democratized, will fall into everyone’s hands, and therefore
ultimately into the wrong hands. The result is that millions of people will
be able to feed the virus into the air of a large city populated by young and
old, most no longer immunized against the threat.
How can the threat be defeated or at least minimized? First, Baker
suggests, by such countermeasures as making vaccines, antibiotics, and
other treatments available now so that they could be in every citizen’s
medicine cabinet ready for emergency use the minute an attack is
discovered. A second active defense is to closely follow who actually has
access to such dangerous pathogens inside the United States. Both
strategies were launched after the 2001 anthrax attacks, but they have since
languished.
One of the culprits is government lethargy. Baker reports that some
scientists at the National Institutes of Health opposed the program because
it meant loss of funding for their own research projects. The Department of
Health and Human Services (HHS) has been reluctant to put in place
realistic regulations for approval of counter-measure drugs, and thus they
remain unavailable to the general public. Speed in treatment will be
essential; hours will be crucial and days decisive in limiting the scale of the
disaster. Baker tells us that following an anthrax attack, almost all of the
targeted population would survive if treated within three days. On the other
hand, half might not survive if they had to await treatment for five or six
days,
But what is the current plan to deliver antibiotics to the population?
Baker says that delivery depends on the U.S. Postal Service. Baker sets out
in excruciating detail the logistical nightmare that such a plan entails,
including the difficulty of providing security to the postmen, getting routes
straight, protecting the mailboxes containing antibiotics from thieves or
even those who are dying for lack of medicine. And how likely is it, he
asks, that a heavily unionized postal service would easily and quickly agree
to show up for work and drive into anthrax-contaminated neighborhoods to
distribute antibiotics? Five or six days begins to seem like an impossibly
short time.
The second prong of an active defense – finding out who has access to
the biotechnology tools to create deadly viruses – likewise has foundered
on the rocks of bureaucratic refusals and privacy lobby objections. After
the 2001 anthrax attack that killed seven people, Congress adopted a
registration-and-accountability program that would make background
checks possible for researchers who work with biol…
Purchase answer to see full
attachment