Privacy vs. Security

Philip B. Heymann, a Professor of Law at Harvard Law School, and Juliette N. Kayyem, a lecturer in public policy at the Kennedy School of Government at Harvard, co-wrote an editorial on the importance of protecting privacy and freedom of speech while upholding the Patriot Act, which appeared in the Opinion Section of today’s Boston Globe.

Heymann and Kayyem, coauthors of the upcoming MIT Press book Protecting Liberty in an Age of Terror, are co-chairs of the Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism. Certain sections of the Patriot Act are due to expire and Congress is expected to vote on their renewal within the next week.

We studied the toughest questions in the post-9/11 era, including the conflicting demands of privacy and security. Particularly relevant for the debate over the Patriot Act are our findings on compelled government access to private, confidential records in terrorism investigations.

The Patriot Act gave expanded powers to the federal government to seize personal records (like those retained by hotels, libraries, and medical facilities) in special national security cases where court review is either diminished or nonexistent. The act allows the government to engage in a fishing expedition, demanding records without tying the request to a specific suspect or group (in other words, without ''individualized suspicion") so long as its stated purpose is to find out something about a terrorist threat. For example, Section 215, which applies to a wide array of personal records, merely requires that the records themselves be sought for an investigation whose purpose is, in some way, ''to protect against" terrorism or spying by a foreign power -- not necessarily an investigation focused on a specific event, person, or organization.

When there is no specific event or organization that the government is investigating, relevance or motivation simply doesn't work as any limit on gathering information. Investigations undertaken in order to somehow protect against international terrorism could, if nothing more specific is required, examine any of the lawful activities of any citizen, including citizens in no way suspected of any specific link to terrorism or crime, such as subscribers of particular magazines. This has potentially serious implications for privacy and freedom of speech. Our project recommended that the standards for obtaining private, personally identifiable information in such investigations -- for example, to obtain access to library records -- should be based on individualized reasonable suspicion.

We believe that compelled access to personal records should depend on whether there is a judicial finding of a link between the records and an individual or organization already reasonably suspected of being engaged in terrorism or a specific planned or executed act of terrorism — or of being in contact with such a suspect.

Read the full article at Bostonglobe.com.