Anti-Terrorism and Privacy, a Gray Area essay
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Outlook on privacy and surveillance has modified drastically in the last decade. Some observers commentate that the U.S. Government has always faced a dilemma of maintaining the balance between surveillance policy and constitutional right of privacy (Bloss 2006). Other observers note that the tragedy which happened on September 11, 2001 (9/11 henceforth) was a turning point that demonstrated the absolute necessity of police surveillance.
Long before September 11, 2001, the history had been filled with incidents when U.S. officials should increase the police surveillance activity to protect public safety. Therefore, nowadays, operating in a technologically advanced environment and knowing the extent of terrorist resources, the police is obliged to provide the best public safety under increasingly complicated circumstances (Posner 2009). Although, the police lack the technical support and manpower to keep up with modern terrorists, they have expanded their surveillance facilities by cooperating with private commercial organizations to obtain confidential and private information (Berdal and Serrano 2002). Thus, the new dilemma of the modern world is how to be safe but not being watched.
The paper is going to examine the aspects that have contributed to this dilemma and determined its influence on privacy and life of Americans. The paper first considers political, social and legal aspects of privacy protection and surveillance. Second, the paper will examine the surveillance effect on the privacy right of American people.
Constitutional Right of Privacy
Privacy is a right of paramount importance. According to the U.S. Supreme Court Justice Louis Dembitz Brandeis, “The makers of our Constitution … sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. … The principle underlying the Fourth and Fifth Amendments is protection against invasions of the sanctities of a man’s home and privacies of life” (Posner 2009). Privacy is an indispensable condition of freedom and independency, which are basic principles of American society. It is obvious that without privacy, freedom cannot exist.
From time immemorial, people have been sensitive to their sense of freedom and privacy. The concepts of “individuality” and “privacy” are connected. The personal opinion and intellectual property would cease to exist without privacy. Thus, the latter is crucial for democracy and for development of a free society. Although there is no officially accepted rule of the right to privacy, court opinions on privacy issues circumscribe three zones of privacy interests (Chang 2003). The first one is autonomy, which is a desire of any person to avoid interventions, regulations or advise in their private activities. In other words, autonomy allows a person to make decisions independently.
The second privacy interest is against intrusion; it means being out of view of surveillance in circumstances which reasonably require privacy. The anti-intrusion interest and anonymity are connected. In this context, anonymity means that anyone should have the possibility to live their daily life out of the radar. However, the surveillance technology is created to break this anonymity and, under certain circumstances, government allows this invasion (Bloss 2002). The acceptability of circumstances, types of intrusion and extent of intrusion are ambiguous notions and change every time with new advances in surveillance technology.
Private information is the third major interest of privacy. Private information is also connected to the concept of anonymity. However, unlike intrusion that concerns actions and daily activities, the anonymity of private information is about maintaining the confidentiality of data. The argument for private information derives from the concern that individuals have a right to control access to their confidential data (Bloss 2006).
Police surveillance directly interacts with an anti-intrusion interest because it is created to observe the actions and activities which the person believes are private. Regarding the connection of surveillance procedure to concerns of privacy, there is a necessity to discuss investigations and the Fourth Amendment of the U.S. Constitution. An unreasonable and illegal investigation is an invasion in a personal right to privacy. New advances in surveillance technology, erase the boundaries between what is relevant and what is irrelevant to the investigation. The previous version of the Fourth Amendment applied the trespass doctrine. This “location-based” method meant that if the surveillance occurred without physical intrusion (wiretapping), a warrant would not be needed (Brown 2012). In 1967, the Supreme Court substituted the trespass ruling doctrine with the new Katz doctrine. In Katz versus United States, the Court established that a wiretapping comprised a search. The Court in Katz acknowledged the fact that surveillance violates a personal anti-intrusion interest without physical trespass. The Katz doctrine was an essential step in developing the protection of private life against modern technologies. The Court acknowledged that physical trespass is not always required to break someone’s privacy, and confirmed that nonphysical intrusion by the government requires a warrant. However, the Katz doctrine does not provide enough protection against various emerging technologies (Berdal and Serrano 2002).
Expectation of Privacy
A change in the U.S. privacy rights could be comprehended in the context of the equilibrium between the government authority and civil freedom. American Constitution entitles citizens to an “expectation of privacy” (Katz v. United States). This protection, nevertheless, has been influenced by modification in legal doctrine, new bills and statutes, as well as counter-terrorism procedures. Private rights are a fundamental part of communication between the government and citizens in the U.S. culture. Thus, an “expectation of privacy” has become a keystone of American legislature and the doctrine that has given birth to a number of statutory and law cases (Hofman 2004). As an element of civil liberty protection, American people have a legal right to protect their private activities against police surveillance.
USA Patriot Act of 2001
Five decades after Katz, technological development, global terrorist threats, and international criminal organizations forced the government to consider citizen privacy guarantee from the perspective of the compelling need to provide public safety. New statutes and decreased legal restrictions of the police activity have led to a different approach to the right of individual privacy, which is now considered from the perspective of national security.
Immediately after the terrorist attack on September 11, 2001, the U.S. Congress revised a number of federal laws and granted the police with an extensive surveillance power, as well as access to confidential information. The “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act” (Posner, 2009), subsequently abbreviated as the “USA Patriot Act of 2001” (Patriot Act henceforth), is the bench mark of procedures and standards of new national security. Fifteen federal laws were revised or completely modified. The primary concern was the foreign intelligence and counter-terrorism. These new laws became a catalyst of statutory revisions of all surveillance procedures and standards in all police stations of the U.S. Core provisions of the Patriot Act extended police surveillance power under a number of existing federal statutes and procedures. The primary objective was to provide and obtain access to comprehensive information. According to this aim, the Patriot Act expanded the meaning of such terms as “foreign intelligence”, “terrorist organization”, and “domestic terrorism”. Moreover, it allowed the police to have greater latitude of action and power in conducting investigations that concern foreign intelligence and terrorism (Abrams 2005).
Patriot Act also boosted the police investigative potential by decreasing a number of legal restrictions of Wiretap Act (Safe Streets Act of 1968, Title III) and the Omnibus Crime Control. It allows requesting a wiretap search warrant to engage in surveillance as soon as possible. Wiretap warrant covers such investigations as “terrorism”, “chemical weapons”, “foreign intelligence information” or “computer crime”. The court has no right to refuse such warrant if there was a proper request (Greenberg 2007).
Effects of Police Surveillance
Sensation of risk can result in anxiety, increased avoidance of public places, avoidance of public transports, and growing suspicion and distrust of others. Government response to apparent terrorist threats that comprise increased surveillance could provoke magnification of such unfavorable public reactions.
Police surveillance procedures can be performed in two basic manners, which are conspicuous and inconspicuous. The evidence of the police surveillance is available for public, which increases the likelihood that it will affect public behavior. Preventive conspicuous police measures may affect the public danger sensation through the issuance of color-coded hazard warnings, presence of the military or armed police in public places, and evident usage of surveillance electronic equipment (Parenti 2003). Actually, as experience shows, with several amendments made by the Patriot Act, a lot of police surveillance operations remain inconspicuous until the police take a decision to have an enforcement measure against the target of an investigation.
Diminution of Privacy Rights
The first outcome of increasing police surveillance power is the reduction of civil privacy security. Fundamentally, a converse relation exists between the civil privacy security and increasing police surveillance. That is why, as U.S. police surveillance power increases, personal privacy decreases (Bloss 2002). Procedural and legal modifications have helped the police to increase their surveillance presence and search. Because of this, citizens may be watched by officials who are engaged in collecting information on physical and electronic servers. The transactions of identities and citizens movements are particularly accessible to officials through burgeoning databases of personal data. Purposely established constitutional security of privacy has been thinned through post 9/11 federal law provisions. Mandatory legal review, probable cause, warrant, and primacy of citizen privacy are designed to limit police surveillance. Therefore, any investigation without probable cause or warrant is considered illegal intervention. However, warrant exceptions and ambiguous legal standards allow the FBR and other officials to engage in surveillance and conduct investigation with fewer restrictions (Bloss 2006). The consequence is the creation of a new privacy pattern where the sensation of increased public safety danger has twisted the equilibrium away from true protection of citizen privacy and lead to a new meaning of the privacy interpretation – the meaning with the post 9/11 background (Department of Homeland Security 2012).
Magnifying Suspicion and Disrupting Civil Life
As mentioned before, the post 9/11 extension of police surveillance authority is a result of an official response to the sensation of terrorist threats. This reaction brought about the boom of police conspicuous surveillance actions which often disturb private citizens and alter the public sensation of danger through apparent secure measures and public safety oratory. As Parenti annotates in his book, “September, 11 of 2001 is radically accelerated momentum toward the soft cage of a surveillance society, just as it gave the culture of fear a rejuvenating jolt” (Parenti 2003). The craving of the extremists for causing disturbance and agitated public concern is among the basic principles of terrorism (Brown 2012). In addition, the terrorists attempt to provoke an official reaction, which alters the stability of daily life through the use of symbolic political aggression (Davis 2012). As Posner commented in his book, “Osama bin Laden’s interviews in May 2001 with the Arab journalists also indicated that he was hoping for an unrestrained U.S. government response that would clamp down on the domestic public and civil liberties and “normal” American life” (Posner 2009). In such sense, both premeditated actions of the terrorist organizations and subsequent responses of officials have the potential to lead public into anxiety and suspicion.
Escalation of public suspicion and distrust demonstrates itself in several ways. Public safety issues have heated an alien conspiracy response when minority groups and immigrants are viewed with heightened suspicion. In his book Parenti refers to this phenomenon as an “enemy kulturkampf”. The latter involves the residents’ of the country mistrust to the foreigners, minority groups and immigrants, which is magnified by official propaganda. The latter encourages the public “to place all their trust in national corporate power and do not trust others” (Chang 2003). Greenberg argues that agitated and heightened concern and anxiety about international terrorist threats have resulted in contented relinquishment of civil liberties by the American public togovernment officials. This transfer of authority from the public to government officials is reflected in the public support of and indulgence to an expansion of police surveillance powers (Lyon 2007). Nowadays, in many states of the United States there are extensive debates about the advantages and disadvantages of surrendering private life and civil freedom rights for the sake of public safety (Chang 2003). The question remains the same. How probable is that such trust of the public to the officials has a positive effect on American society? Identity theft, blackmail and other criminal activities are possible due to extensive and uncontrolled surveillance. Laqueur in his article “New Terrorism”notes that fear and mistrust have profound effects on public life. In such situation, the term “terrorist” get a new meaning. People no longer see people in a crowd; they see only the foreigners and strangers. The matter of fact, panic and suspicions are contagious, this crowd phenomenon is not a new one. The consequences of increasing panic in both social and political terms can be really adverse; they can lead to distrust, fear animosity, fights, and stress (Hoffman 2004).
Another area of public concern and disturbance is the obstructions to free movement caused by escalating number of security measures. Complex of measures on preventing future terrorist attacks have made the police of the United States to build a lot of special secure objects in public places. The use of checkpoints and constant baggage searches in public places has become a common indicator of a greater threat sensation. For some people, perhaps all these measures are a mere inconvenience, but for others it is more than a small inconvenience. In any case, it has disrupted some aspects of traditional social life (Berdal and Serrano 2002).
Increasing police surveillance measures and activities has a dramatic impact on civil life of American people. Although, legally based and reasonably explained as necessary, the surveillance has affected the fragile equilibrium between official security measures and civil liberty. Escalating security measures have exerted their influence on every aspect of public life by raising risk sensation, anxiety, animosity, suspicion and overall influence on personal decision making about traditional social activities (Abrams 2005).
The post 9/11 time-period has brought a plethora of modifications in the relationship among terrorist organizations, the U.S. citizens, and the U.S.police. At the same time, the United States has made a lot of changes in their legislation and home security in terms of the prevention of future terrorist attack. The measures that were undertaken by the U.S. government have provided a number of political, legal, social, emotional and psychological impacts on the American people. The re-assessment of equilibrium between the police surveillance measures and the right of individual privacy is inevitable. The government should find methods to secure American people and simultaneously respect their privacy.
Current legal philosophy of the U.S. provides practical evidence of the changing equilibrium of competing impacts between police surveillance necessity and private life safeguards (Chang, 2003). This paper has described such changes and the political and legal causes for the twisting doctrine. However, there are some disagreements among observers about the police surveillance impact on public disturbance. Some of them are more loyal to national security and necessary police measures, while others are sure that the government just uses the situation to control their people.
As usual only time and future events can define exactly what measures are necessary and what measures are excessive. Something always needs to be sacrificed in order to obtain something more important. Since privacy rights derived from legislation, they could be monitored by the law. Traditionally, law doctrines are continuously evolving; therefore, scholars and other independent observers will continue to observe the changes in individual privacy rights and evaluate the impact of the escalating surveillance on them. As new technologies continue developing, the police surveillance will go on escalating. Thus, considering new technology advances, the government has to foresee some steps to protect not only American people’s lives, but also their right to live happily and freely.
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