Page 116 - Privacy in a Cyber Age Policy and Practice

104 PRIVACY IN A CYBER AGE

numerous court cases weigh which side—privacy or the public interest—
should take precedence in the given situation and conditions.

4. Within History

The balance between privacy and security that the liberal communitarian
paradigm seeks must be constantly adjusted as historical circumstances
change (e.g., following the 2001 attacks on the U.S. homeland) and following
technological developments (e.g., improvements in facial recognition tech-
nology). Thus, a society ought to afford more leeway to security measures
if there are valid reasons for thinking that the threat to the public has
significantly increased, and give less leeway once the threat has subsided.
This chapter next turns to examining the criteria that can serve to help sort
out where the balance lies in a particular historical situation.

B. The Four Criteria: Finding the Balance

The liberal communitarian approach draws on four criteria to identify a
proper balance between the competing values of security and privacy for a
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given nation in a given time period. First, a liberal democratic government
will limit privacy only if it faces a well-documented and large-scale threat
to national security, not merely a hypothetical threat or one limited to a few
individuals or localities. The main reason this threshold must be cleared is
that modifying legal precepts—and with them the ethical, social, and public
philosophies that underlie them—endangers their legitimacy. Changes,
therefore, should not be undertaken unless there is strong evidence that
either national security or privacy has been significantly undermined.
The 9/11 attacks constituted a significant change to historical conditions by
revealing the serious threat posed by nonstate actors determined to strike
within the borders of the United States. Because there have been no signifi-
cant new attacks within the country since 2001, there is a growing tendency
to call for a rebalancing, to oppose enhanced security measures (e.g., surveil-
lance by the NSA and special judicial proceedings for suspected terrorists),
and to call for more attention to privacy concerns (e.g., by relaxing TSA
search standards and restricting the use of surveillance technologies such
as drones). However, although the United States has done much to disrupt
al Qaeda and other such groups, the threat of terrorism still seems consid-
erable. There remain many hundreds of thousands of people around the
world who deeply hate the United States and what it stands for, consider
it to be the “Great Satan,” wish it harm, and believe that using violence
against it constitutes an act of martyrdom. It seems reasonable to assume