We are treading in the unfamiliar neck high waters of a novel virus pandemic, yet we are also treading in the murky familiar pattern of sacrificing privacy for urgency. It was not that long ago that our country collectively experienced the terrorist attacks of 9/11. Our leaders needed a rapid solution to counter the terrorists after realizing that our ineffective bureaucracy was impeding intelligence work as well as stifling speed of action. America’s civil liberties changed along with the twin tower attacks and a valid justification for a decrease in privacy. As the immediate threat subsided, the justification of a possible future attack kept those diminished privacy laws in place. Is it difficult to see the same pattern playing itself out now with the COVID-19 pandemic? We have a valid life-threatening reason to give companies like Apple and Google free reign into our personal lives (as if they don’t already). They can help save us from ourselves using their technology. In tech we trust!
It has been said by many a politician that one should never waste a good crisis. Congress could never have passed the laws that followed 9/11 under any other circumstances. The USA Patriot Act grew into an organism with tentacles too long to unwind ourselves from its grasp. Then in 2008 after the housing bubble burst (that no one saw), we decided more legislation was the answer once again! Congress passed the Dodd-Frank Act to protect us from further systemic financial threats. I liken these bills that go to extreme measures after the fact to putting in a million-dollar security system after your house has already been robbed. I get it, it makes you feel safe, but the deed’s been done, and probably won’t happen the same way again. Now on the cusp of another crisis we are again looking to enact more sweeping measures, but this time to give broad powers to a few companies to examine everything we do.
September 11th and the Patriot Act
If we look back at the sentiment of the country during the September 11th attacks, it was a time of confusion and fear. Sure, as the years passed on, those sentiments have faded from our collective memories, but the reality is that we were all in a state of shock. The reaction was quick and decisive. The measures subsequently put in place provided refuge and immediate protection.
The longer-term repercussions and ramifications, which we did not see then, now bring up questions like how do we unravel these labyrinthine measures in peace time? The greater question is in the future how do we learn from the past and implement policies that both protect us within a crisis, and not impact future generations that might not have been alive during their creation but are suffering under its repercussions. We justify it by saying it is the only world they know. My children know nothing else than a world with social media, too much sharing and an invasion of privacy. They were simply born into and so it is.
When the terrorist threat was imminent, we liked the idea of going after the bad guys that were trying to kill us and going after them as quickly as possible. I get it. I was in that camp. What we did not like was the idea that there was someone somewhere reading all our emails and searching all of our private conversations without legal justification. That seemed like a step over the edge.
In my deep dive (not really), into Wikipedia, I found some startling information I did not previously know about the Patriot Act. It looks like we were surely stepping on fourth and first amendment rights in an obvious way. It states,“…the permission given to law enforcement to search a home or business without the owner’s or the occupant’s consent or knowledge; the expanded use of National Security Letters, which allows the Federal Bureau of Investigation (FBI) to search telephone, email and financial records without a court order…”(Patriot Act, n.d.)
When you look at what Wikipedia calls the most controversial parts of the USA PATRIOT Act and the case of Nicholas Merrill you start to worry that we are exemplifying George Orwell’s 1984 fears to a T. I apologize for the long quote, but I felt it was worth the read.
Wikipedia USA Patriot ACT Title V
“One of the most controversial aspects of the USA PATRIOT Act is in Title V, and relates to National Security Letters (NSLs). An NSL is a form of administrative subpoena used by the FBI, and reportedly by other U.S. government agencies including the CIA and the U.S. Department of Defense (DoD). It is a demand letter issued to a particular entity or organization to turn over various records and data pertaining to individuals. They require no probable cause or judicial oversight and also contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued. Title V allowed the use of NSLs to be made by a Special Agent in charge of a Bureau field office, where previously only the Director or the Deputy Assistant Director of the FBI were able to certify such requests. This provision of the Act was challenged by the ACLU on behalf of an unknown party against the U.S. government on the grounds that NSLs violate the First and Fourth Amendments of the U.S. Constitution because there is no way to legally oppose an NSL subpoena in court, and that it was unconstitutional not to allow a client to inform their Attorney as to the order because of the gag provision of the letters. The court’s judgement found in favour of the ACLU’s case, and they declared the law unconstitutional. Later, the USA PATRIOT Act was reauthorized and amendments were made to specify a process of judicial review of NSLs and to allow the recipient of an NSL to disclose receipt of the letter to an attorney or others necessary to comply with or challenge the order. However, in 2007, the U.S. District Court struck down even the reauthorized NSLs because the gag power was unconstitutional as courts could still not engage in a meaningful judicial review of these gags. On August 28, 2015, Judge Victor Marrero of the federal district court in Manhattan ruled the gag order of Nicholas Merrill was unjustified. In his decision, Judge Marrero described the FBI’s position as, “extreme and overly broad,” affirming that “courts cannot, consistent with the First Amendment, simply accept the Government’s assertions that disclosure would implicate and create a risk.” He also found that the FBI’s gag order on Mr. Merrill “implicates serious issues, both with respect to the First Amendment and accountability of the government to the people.”  Initially, the ruling was released in redaction by Judge Marrero. The FBI was given 90 days to pursue any other alternative course of action but elected not to do so. Upon release of the unredacted ruling on November 30, 2015, it was revealed for the first time the extent to which the FBI’s NSL accompanied by a gag order sought to collect information. Through the court documents, it was revealed for the first time that through an NSL, the FBI believes it can legally obtain information including an individual’s complete web browsing history, the IP addresses of everyone a person has corresponded with, and all the records of all online purchases within the last 180 days. The FBI also claims via the extension of an NSL, it can obtain cell site location information. In the landmark case of Nicholas Merrill the FBI in specific sought to seek the following information on an account: DSL account information, radius log, subscriber name and related subscriber information, account number, date the account opened or closed, addresses associated with the account, subscriber day/evening telephone numbers, screen names or other on-line names associated with the account, order forms, records relating to merchandise orders/shipping information for the last 180 days, all billing related to the account, internet service provider (ISP), all email addresses associated with the account, internet protocol address assigned to the account, all website information registered to the account, uniform resource locator address assigned to the account, any other information which you consider to be an electronic communication transactional record. This was the first time it was revealed the extent to which an NSL under the Patriot Act could request communication information.” (Patriot Act, n.d.)
As it stands today, we are allowing tech companies like Apple and Google to track us using the Bluetooth chip that is in your smartphone. The idea is that it will reduce the spread of coronavirus by letting phone users know when they are in proximity to someone who has been infected.
This gives me mixed feelings for several reasons. First, I love technology (Napoleon Dynamite reference), but I also love what technology can do and will do in the future. I love the idea of technology saving us from a pandemic. What better use of human ingenuity and years of collaborations eventually culminating to saving our planet from a deadly disease?
All that being said, it doesn’t come free. It comes at the expense of our personal privacy. To many placing technology and privacy on the scales of lady justice, it seems like a good trade-off. Right now, in the moment it seems like a great idea. Yeah, sure, let’s get it done ASAP and save the world.
It is only in hindsight when we don’t have the pandemic equivalent of looking down the barrel of a gun, that we realize we don’t want that Bluetooth technology tracking us all of the time. It already does, but now it will be deeply tracking everyone we encounter. Does this lead to a 1984 Orwellian future where there are no secrets and there is no privacy from big brother?
In the wrong hands this tracking data could give information to mal-intentioned individuals information about high profile targets, like heads of state, governmental power players, or athletes and celebrities. We have seen increases in cyber-attacks but imagine the havoc that could be wreaked with knowledge of everyone you’ve interacted with, in addition to where you’ve been at all times.
We have already seen the great use of coronavirus tracking software to help us stay informed as to how the virus is spreading. That has been a wonderful tool for local and national leaders to help implement polices to keep citizens safe. That is a prime example of how information sharing technology can bring about positive results.
If history has taught us anything it is that when too much power (today that is information), is concentrated in the hands of too few, that power will be abused. Not always, but most of the time. Take Congress with its spending and legislative power. CEO’s and boards with abilities to set salaries and benefits, including golden parachutes. Think of powerful men and their abusive sexual exploits leading to the Me-Too movement. Lastly think of what we did with the Patriot Act and how to this day we are still unwinding the tentacles of 20 years ago.
Again, I am not against the idea of tracking individuals that have the virus and spreading it. I think it is a brilliant idea and we are fortunate to live in a time when we can do it. It is still many times better to be alive today in a world in the throes of a pandemic than it is to be alive in the centuries before. We just need to make sure that we have a well thought out exit strategy that will see us through the other side. Think of all of this like a prenup. We need a pandemic technology prenup. The right to split up amicably and quickly and we want it all in a writing beforehand. There will come a day when we are not worried about the pandemic and fear of losing our loved ones. And on that day our minds will shift from fear of pandemic death to the realization that we killed our civil liberties.