Page 137 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 125

the public interest justified some redefinition or even curbing of rights; in
others, they found that the threat level did not justify such infringement.
For example, in New York Times Co. v. United States the court ruled that,
by attempting to suppress the Pentagon Papers, the government failed to
meet the “heavy burden of showing justification for the imposition of [prior
judicial] restraint,” even though such restraint might be justified if the court
believed that the release of the information would “surely result in direct,
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immediate, and irreparable damage to our Nation or its people.” By con-
trast, a court held in United States v. Hartwell that, although screenings by
the U.S. Transportation Security Administration (TSA) violated privacy,
they were nonetheless permissible because “preventing terrorist attacks
on airplanes [was] of paramount importance” and, thus, the screenings
“advance[d] the public interest” to the point where some violation of pri-
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vacy was justified. This chapter follows the balanced approach taken by the
courts rather than the one-sided advocacy of libertarians and authoritarians.

B. Basic Challenges and Responses

Critics of both surveillance programs argue that terrorism has subsided
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and hence these programs are not needed. For instance, many statements
about the NSA surveillance programs start by arguing that these programs
infringe on this or that right and hence are unconstitutional and should
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be canceled. Even after extensive pleading by the president, the Repub-
lican Speaker of the House, and senior members of those congressional
committees familiar with the programs, the House of Representatives
came within twelve votes (205 to 217) of completely defunding the phone
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records collection program. Others stated that in establishing many of
the antiterrorist measures enacted since 9/11, including the NSA programs
in question, Congress was “reckless,’’ as the powers granted have proven
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“unnecessary and overbroad.” Others argue that terrorists can be handled
with existing legal authorities and procedures, like other criminals. This
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position is taken by Karen J. Greenberg, the Director of the Center on
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National Security, the ACLU’s Anthony D. Romero, and Attorney Gen-
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eral Eric Holder. Europe also widely holds this view. Still others argue
that these surveillance programs are ineffectual and that the phone surveil-
lance program has no proven benefits.
1. Threat Assessments

Those who hold that terrorism has much subsided can draw on President
Obama’s statements to prove their point. The president announced in May