Page 21 - Privacy in a Cyber Age Policy and Practice

6 PRIVACY IN A CYBER AGE

targeting foreign leaders, infiltration and manipulation of media and busi-
ness.” As a result, Congress passed the Foreign Intelligence Surveillance
Act of 1978 (FISA) and created the Foreign Intelligence Surveillance Court
to limit the surveillance of American citizens by the U.S. government. After
9/11 several reports concluded that the reforms had gone too far and had
blocked the type of interagency intelligence sharing that could have fore-
stalled the terrorist attacks. As a result, the Patriot Act was enacted in a
great rush and, according to its critics, excessively sacrificed privacy in
order to enhance security and “correct” what were considered to be the
excesses of the reforms the Church and Pike Committees set into motion.
Since then, the Patriot Act itself has been recalibrated. 17
At each point in time, one must therefore ask whether society is tilting
too far in one direction or the other. Civil libertarians tend to hold that
rights in general and privacy in particular are inadequately protected. The
government tends to hold that national security and public safety require
additional limitations on privacy. It is the mission of legal scholars, public
intellectuals, and concerned citizens to nurture normative dialogues that
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help sort out in which direction corrections must next be made. (Note that
often some tightening in one area ought to be combined with some easing
in others. For instance, a case can currently be made that the Transporta-
tion Security Administration’s (TSA) screening regulations are too tight,
while the monitoring of whether visitors and temporary residents who have
committed to leaving the United States actually do so is too loose.)
Orin Kerr and Peter Swire engage in an important dialogue on whether
the issues presented here are best suited for treatment by the courts or by
Congress, and whether they are largely viewed through the prism of the
Fourth Amendment or congressional acts. The following discussion treats
both as if they were an amalgam.
(iii) Four criteria help specify the liberal communitarian approach to
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privacy. First, a liberal democratic government will limit privacy only if
it faces a well-documented and large-scale threat to the common good (e.g.,
to public safety or public health), not merely a hypothetical threat or one
limited to few individuals or localities. (I avoid the term “clear and present
danger,” despite the similarity in meaning, because it has a specific legal ref-
erence not here intended.) The main reason this threshold must be cleared
is that modifying legal precepts—and with them the ethical, social, public
philosophies that underlie them—endangers their legitimacy. Changes,
therefore, should not be undertaken unless there is strong evidence that
either the common good or privacy has been significantly undermined.
Second, if the finding is that the common good needs shoring up, one
had best establish whether this goal can be achieved without introducing new
limits on privacy. For instance, this can be achieved by removing personally