Chapter 24.1 from Living in the Future Tense: Information, Knowledge and National Security. This
material may be reproduced and the Exercise used with appropriated citation.
National Security vs. Privacy of
Information
Edward Renner
“ The right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized.”
Amendment IV, U. S.
Constitution, Dec. 15, 1791
Julliette Kayyem, a former Assistant Secretary at the
Department of Homeland Security wrote: “A nation free from threat wouldn’t be
free.” Therein lies the dilemma.
Under what circumstances does the government’s need for
access to private information trump a person's right to privacy? The issue is a
dilemma because the problem is not simply a “never” or “always” issue, and
because 21st century digital communication technology has created
totally new situations that did not exist when the constitutional constraints
were created in1791.
Two recent events have brought the extrapolation of the
Fourth Amendment to 21st Century into contemporary focus. The first
is the FBI’s legal challenge of Apple to gain access to the contents of a
specific iPhone in order to obtain the contacts of a known terrorist. The
second is the release of the Panama papers disclosing the extensive use of offshore
shell corporations to hide large amounts of wealth by the rich and famous from
taxation.
Both the fear of terrorism and the anger over America’s richest
individuals having an estimated $1.2 trillion stashed in offshore tax havens are
highly charged issues. Accessing private registers of stocks and bonds and
transferring the information to a public record would allow tax collectors to
find and tax this hidden wealth. However, the cases should not be the occasion
for emotional either/or arguments between security and taxation versus privacy,
all of which are statutory responsibilities of government. Rather, the debate
should be about the general concepts
that define the constraints between government’s need to know and an individual’s
privacy, which can then be applied to any specific case.
Fortunately, social science research on human decision-making
has provided knowledge about why making such decisions are often difficult, and
how to resolve the resulting dilemmas. Under highly emotional conditions, such
as fear or anger, people’s attention becomes narrowly focused and they often
make choices that are objectively poor; likewise, strongly held ideological
beliefs and values can bias judgements. One solution to this human weakness is
to first establish a rational frame of reference before attempting to make the
decision. This decision-making process requires participants who are not
competing to win their point of view, but rather one’s who share the mutual
goal of finding the best possible solution. The decision then becomes a matter
for cooperative democratic civic participation.
An essential part of restoring respect to our democratic
political process is to rise above our current practice of making such
decisions based on fear, anger or ideological beliefs and values, rather than
using social science knowledge and factual information to make rational
decisions. In such cases, the rational context is a matrix which establishes
the general principles as a legislative matter. The matrix itself does not
provide the answer, but rather is a process for solving the problem.
The methodology
Step 1: There are a limited number of
considerations for determining the issue of when government’s access to
information should trump personal privacy. In this illustrative exercise I will
limit the number to three obvious ones.
·
How essential is the access?
·
How intrusive is the access?
·
How adequate are the safeguards to prevent
abuse?
In an actual application there can be as many considerations
as can be rationally justified.
Step 2: Rate each of the issues on a scale ranging
from 1 (not at all) to 100 (always). There are established psychometric procedures
for creating such scales that can be used reliably.
Step 3: Weight the relative importance of each of
the considerations by allocating a total of 100% between each of the three.
The Application
Of course, different people will assign different scores.
But, that is exactly the point; it is to provide an objective basis for civic
discussion about the reasons for any given score and its relative weight. For
example: How reasonable is my assumption that access to the iPhone’s contact
list is unlikely to identify anyone who has not already been identified or who could
not be identified in other ways? Or, is there any good reason to treat accessing
information from off-shore sources as more intrusive than requiring a W-2 form to
be submitted by a recognized employer?
The matrix focuses attention on the assumptions on which
the ratings are made, and on identifying the relevant facts and information. The
methodology can be applied to any situation that requires establishing the
appropriate balance between government intrusion and personal privacy. With the
matrix, it is possible to compare qualitatively different situations, such as
terrorism and tax evasion (i.e., apples and oranges).
The Results
The matrix yields a score between 1 (reflecting a
situation where government access would be an unreasonable invasion of privacy)
and 100, (where there would be absolutely no doubt that access was an absolutely
reasonable intrusion into individual privacy).
As a civics
exercise, the process allows for widespread participation in four ways:
·
Individuals can engage in a face-to-face
discussion about their own ratings in a structured way that promotes thoughtful
reflection.
·
The exercise is actually a class from my university
course. Newspapers, schools, social media and any other institution can use the
method as a tool for promoting participatory civics.
·
The matrix is a research tool for scholarship on
issues of public policy. Professional surveys can provide descriptive statistical
distributions showing averages and the range and extent of deviations. This
allows social comparisons for individuals to see where they stand with respect
other groups of people (e.g., male vs. female, younger vs. older) and where
there is consensus.
·
Substantial civic discussion can directly
support a legislative process based on public participation and consensus
rather than on legislation authored by lobbyists representing special
interests.
The Conclusion
Such a process is a modern replication of the Commons
Green where popular civic participation can take place. Once the general principles
are identified, they can be given legislative status to enable the FBI or IRS
to know the legal constrains for doing their job. Of course, such legislation
is likely to find its way to the Supreme Court. But, such a process of
functional democracy would rescue a court of elderly Justices from being the
ones extrapolating “unreasonable” from 1791 to modern times in the narrow
context of a terrorist’s iPhone or a cloud based data file. Rather, their task would
be to decide if the process and resulting legislation had established what is
or is not an unreasonable intrusion into privacy today.
Decision making as a rational process is an example of
democracy at work in which popular participation can replace the fact-free
ideological chatter that has been the defining characteristic of the current
political process. We have the capacity to do this. The time is overdue for
modern knowledge and technology to become the currency of politics as the means
to meet the new challenges -- such as environmental collapse or an unstainable
national debt -- of living in the 21st Century.
(Use the Exercise Box below to create your own matrix for
defining the basis for the balance between security and privacy, and for
discussing your perspective with that of others in the service of finding
common consensus.)
________________________________________________________________________________
Edward Renner
is a retired university professor who writes on the modern human challenge of
how to live sustainably and peacefully on a crowded planet in the 21st Century.
A prepublication draft copy of his most recent book is available at www.livinnginthefuturetense.org. He may be reached at erenner@livinginthefuturetense.org.
Exercise
The issues
(1) Should the
government be able to force Apple to help the FBI gain access to the content of
a specific iPhone in order to learn the contact network of a known terrorist?
(2) Should the
government be able to access registers of stocks and bonds and transfer the
information to a public record that would allow tax collectors to find and tax
hidden wealth?
Directions
Assign a score of 1 to 100
for each of the three considerations for both the iPhone and Panama Papers.
Give a relative percentage weight to each of the three considerations such that
their sum is 100%. Multiple each score by the weight and record the calculated
value of each consideration. Add the values to obtain the score for each issue.
This final sum will be a score between 1 (government access is an unreasonable
intrusion into protected privacy) and 100 (government access to private
information is absolutely reasonable).
iPhone
|
|||
Considerations
|
Score
(1 to 100)
|
Weight
(.01 to 1.0)
|
Value
(Score x Weight)
|
Not Essential = 1,
Very Essential = 100
|
|
|
|
Very Intrusive = 1,
Not Intrusive = 100
|
|
|
|
Inadequate Safeguards =
1,
Adequate Safeguards = 100
|
|
|
|
Sum
|
1.00
|
||
Panama Papers
|
|||
Considerations
|
Score
(1 to 100)
|
Weight
(.01 to 1.0)
|
Value
(Score x Weight)
|
Not Essential = 1,
Very Essential = 100
|
|
|
|
Very Intrusive = 1,
Not Intrusive = 100
|
|
|
|
Inadequate Safeguards =
1,
Adequate Safeguards = 100
|
|
|
|
Sum
|
1.00
|
After completing the exercise
consider comparing your responses, and the reasons for them, with others by
posting your scores and comments, and by reading and responding to the comments
posted by others.