9/11 and the Digital Age: the Problematic Right to Privacy

The First Amendment was implemented to give the U.S. citizen the right to freely express their thoughts and ideas. The Fourth Amendment was implemented to give the U.S. citizen the right to be free from any unlawful searches from the government. From these two rights, it can be concluded that the government should neither be able to stop U.S. citizens from speaking out publicly, nor should they be able to peek into their lives without proper cause. I argue that since the attacks of September 11th, 2001, these constitutional rights to privacy have been hindered dramatically; and in an increasing digital age and information society, an individual’s right to privacy has largely been infringed upon and greatly diminished. To pose this argument in the form of a question, this essay aims to answer the question of: As a result of living in an increasingly digital age and information society, how has an individual’s right to privacy become threatened? I argue that due to post 9/11 anxiety, and the easy availability of personal data held by private corporations in today’s digitized world makes it very tempting and much easier for the government to infringe upon one’s individual data. Looking at this posed question and argument through a couple of different lenses. First, from the legal perspective I will dive into the details of the Patriot Act, and some of the repercussions of the implementations of this specific law. I argue that the country embraced these new laws because of an overarching sense of fear among the American people after 9/11, while neglecting the notion that their individual rights were being violated. In addition, this essay aims to look at the posed questions above from the current technology industry perspective. In an increasingly digital age, companies like Google, and Apple, sometimes referred to as the “Silicon Valley” industry, played a pivotal role in regards to an individual’s right to privacy. In an increasingly digital age and information society, the world we currently inhabit has much of our personal information accessible via digital cloud services and cyberspace, and the very essence of what we once considered a private sphere has become a form of a public sphere whether we are aware of this or not. To further this point, I will research instances like Apple’s case with the FBI, in regards to unlocking the iPhone of one of the suspected shooters at San Bernardino, as well as Google’s deal with the National Health Service that allows artificial intelligence units to access 1.6 million private patient records. The very essence of what we once considered a private sphere has been diminished, and the repercussions from that are boundless.

In order to dive into an analysis of the infringement of an individual’s right to privacy since September 11th, 2001, an explanation of what privacy exactly means is imperative. According to Besar Xhelili, and Emir Crowne, both Associate Professors at the Law Society of Upper Canada, “The traditional understanding of privacy focuses primarily with individual rights of privacy against state interference.” (Crowne & Xhelili, 2012) In other words, the notion of privacy is primarily focused on an individual’s right to hold some of their information from the public eye, and from the government. However, it is noteworthy that this notion of privacy is located on a slippery slope. According to Crowne and Xhelili (2012):

“The individual’s desire for privacy is never absolute since their desire to participate in a society is equally as powerful. We often have inconsistent views about privacy for we may want its protections yet we also want the benefits that come as a result of practices that undermine those protections.”

This explanation can be simplified down to the notion of an individual’s right to privacy being placed on a slippery slope. As an individual member of a society, one does not want to seem like they have anything to hide. Every individual wants to be able to function as they please, without the worry of information being infringed upon by the government. However, every individual wants their government to be able to stop possible threats of terrorism or danger to their society, and to be able to prevent those threats from occurring in the future. In an increasingly digital age, the new main way to stop these threats from occurring in society is through the surveillance of said “threat’s” individual information that is available in the cybernetic cloud. This information can be obtained through the surveillance of one’s text messages, emails, or phone calls. Essentially, anything imaginable that is put to use by everyone in today’s society is susceptible to surveillance. Hence, the slippery slope metaphor. Everyone wants to live in a society free from possible terrorist threats; but no one wants to live in a society where all their personal information is susceptible to surveillance. This balancing act between the government, and an individual’s right to privacy has been reiterated by Emanuel Gross, a former military judge in the Israel Defense Forces, and an Associate Law Professor at Haifa University. He stated:

“There is no choice- in a democratic society seeking freedom and security but to create a balance between freedom and dignity on one hand and security the other. Human rights cannot become an excuse for denying public and state security. A balance is needed-a sensitive and difficult balance-between the freedom and dignity of the individual and state and public security.” (Gross, 2004)

Finding this balance, is no walk in the park. There are a plethora of different perspectives a government must consider in order to properly find this balance, and new technologies have made this balance even harder to find.

Following the September 11th, 2001, attacks, the FBI operated as the leading control agency in what scholars and popular writers call the new “surveillance society”, according to Ivan Greenburg. (Greenburg, 2011) Also noted by Greenburg, “The FBI’s director, Robert S. Mueller III, articulated this surveillance goal in a November 10, 2008, speech: ‘In the FBI, we have a mantra: ‘Know Your Domain.’ Knowing your domain means understanding every inch of a given community-its geography, its populations, its economy, and its vulnerabilities.” (Greenburg, 2011) This trend towards an increase in overall surveillance runs parallel to the implementation of the Patriot Act a month after the attacks of September 11th, 2001. According to the US Department of Justice, the PATRIOT Act was signed into law by President George W. Bush on October 26th, 2001, “To preserve Life and Liberty, by uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism”. Simply put, this act was to improve the country’s counter-terrorism efforts in several different ways. On the surface, this act seems very logical and appropriate in the wake of a terrorist attack. However, as I noted earlier, this does not come without controversy. According to Gross, an associate professor of law at Cornell, “Even though the purpose of the law is to strengthen the ability of the law enforcement agencies to fight terrorism, many of the statutory provisions may be used in ordinary criminal investigations.” (Gross, 2004) In addition, according to Besar Xhelili, and Emir Crowne, there are sections of the Patriot Act that affect the United States Fourth Amendment. They state:

“Section 218 does require a court order to authorize electronic surveillance, but it diverges from the Fourth Amendment, as the rules on probable cause and notice are very relaxed. Lastly, section 213, the “sneak peak” section allows agents conducting search warrants to delay telling their targets that their property is being searched or even seized.” (Crowne, & Xhelili 2012).

As one can infer, an individual’s right to privacy is now viewed as a sort of grey area of uncertainty. This is because the government’s power to obtain private, personal, information has increased, and with that, the ability to privately carry out investigations of certain individuals, or any individual for that matter, without knowledge or consent has also increased. This controversy was heightened when the iconic company Apple, found itself at a crossroads with the FBI in regards to obtaining information from one of the suspected shooters iPhones at San Bernardino. According to Julia Greenberg, a writer for wired magazine,

“In mid-February, the FBI said it was unable to access encrypted data on the iPhone 5c of one of the San Bernardino shooters. Under the Patriot Act, a California judge ordered Apple to help, by creating a new software tool. But Apple believed complying would set a dangerous precedent. Apple believed that the FBI’s demands not only threatened customers’ privacy and personal security, but also violated the company’s right to free speech.” (Greenberg, 2015).

This stance that Apple took led to the court case being put on hold. However, further analysis of this dangerous precedent is imperative. It would lead to unlocking every single iPhone with the new software the FBI was asking for, not just this specific suspect’s iPhone. However, in regards to the slippery slope metaphor referenced before, there is always a counterargument to these issues at hand. As it pertains to this specific situation, Andy Cunningham, a former publicist for Steve Jobs, told The Chicago Tribune, that she thinks “Apple did not go far enough in explaining how assisting the FBI in this case could set a dangerous precedent, because foreign countries could demand similar assistance down the road which could lead to be very problematic.” (Cunningham, 2015) The right to privacy in a world filled with terror has always been a tough issue to tackle. However, in an increasingly digitized society, all of the new technologies that are being integrated into our lives can make an individual’s right to privacy problematic. For example, in 2014 the iconic company Google struck a deal with the United States National Health Services that granted Artificial Intelligence unit’s access to 1.6 million patient records. According to an article in Tech Times Magazine, written by Catherine Cabral-Isaberda, “These records not only include your doctor visits, but other sensitive information such as abortions, drug overdose, and even HIV status.” (Cabral-Isaberda 2016) One may be inclined to ask, what is the reason for giving away all this information? Google’s answer to this question is that they are implementing a technology from these records to develop an app to monitor patients with kidney disease. Many are skeptical, Sam Smith from the health data privacy group stated; “This is not just about kidney function, they are getting the full data”. (Cabral-Isaberda 2016) To help further understand this example, it is imperative to understand all aspects of it. Artificial intelligence units are defined as “the theory and development of computer systems that are able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision making, and translation between language.” The fact that a computer system that performs tasks usually requiring human intelligence, but does not, scares some people. A computer system that performs tasks that normally requires human intelligence, now having access to many private health records, scares people a little more. Many feel that it is a direct violation of privacy. This just further proves the point, in this new “digital age” that we are currently living in, it is increasingly harder to identify an individual’s specific rights to privacy.

At the beginning of this essay I stated that throughout my research I aimed to answer a question: As a result of living in an increasingly digital age and information society, how has an individual’s right to privacy become problematic? I argued that due to post 9/11 anxiety, and the easy availability of personal data held by private corporations in todays digitized world, makes it very tempting and much easier for the government to infringe upon one’s individual data. This essay has also articulated the vast impacts the attacks of September 11th, 2001, have had on an individual’s right to privacy in the United States from a legal perspective. There are many constitutional clashes to an individual’s right to privacy as a result of the implementation of the Patriot Act. This essay has also looked at the posed questions above from the technology industry perspective. In an increasingly digital age, the technology industry which provides us with our Googles, and our Apples, sometimes referred to as the “Silicon Valley” industry, is proven to have played a pivotal role in regards to an individual’s right to privacy. After analyzing the information pertaining to this topic through their perspective, it can be concluded that an increasingly digital age, where new technologies and services are being integrated into our lives every day, makes it easier for an individual’s right to privacy to be infringed upon by a third party. This third party could be the government, or it could be a terrorist trying to gain important information to carry out an attack. Thus lies the dilemma. As a result of the September 11th, 2001, attacks we called for an increase in surveillance, but did we metaphorically “bite off more than we could chew” when we did this? This essay argues yes, and the proper evidence has been provided to support this claim.

References

Xhelili, B., & Crowne, E. (2012, April 1). Privacy & Terrorism Review Where Have We Come In 10 Years? Journal of International Commercial Law & Technology, 7(2), 121–135. Retrieved November 10, 2016.

Gross, E. (2004, March 1). The Struggle of a Democracy Against Terrorism — Protection and Human Rights The Right to Privacy Versus the National Interest — the Proper Balance. Cornell International Law Journal, 37(1), 28–93. Retrieved November 10, 2016.

Greenberg, I. (2011, September 1). The FBI and the Making of the Terrorist Threat. Radical History Review, (111), 35–50. Retrieved November 10, 2016.

Isabedra, C. C. (2016, May 1). Google Strikes Deal with NHS That Gives AI Units Access To 1.6 Million Patient Records. Retrieved November 10, 2016, from http://www.techtimes.com/

Greenberg, J. (2016, March 25). To Fight the FBI, Apple Ditched Secrecy for Openness. Retrieved November 10, 2016, from https://www.wired.com/2016/03/fight-fbi-apple- ditched-secrecy-openness/

What is the USA Patriot Web. (n.d.). Retrieved November 15, 2016, from https://www.justice.gov/archive/ll/highlights.htm