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EPIC Alert 8.18  EPICAlert 18 (24 September 2001)
Volume 8.18 September 24, 2001
Published by the Electronic Privacy Information Center (EPIC)
Special EPIC Alert
In the days following September 11, Congress moved quickly to showsupport for the President and granted him certain authority to pursuemilitary
matters on behalf of the country. Congress then worked toprovide financial support for rebuilding after the tragedy. ThenCongress
acted to improve airline safety, ensure aid to the airlineindustry, and begin to restore American confidence in air travel.
Now it may be appropriate for Congress to take a breath before ittackles the subjects contained in the various bills that will becirculating
on Capitol Hill this week. Unlike the earlier measuresthat responded to the immediate crisis, the topics under considerationthis
week -- immigration policy, criminal law, electronicsurveillance, and intelligence gathering -- sweep broadly into otherareas and
run the risk, particularly at this point in time, ofchipping away rights that safeguard all Americans.
In the area of electronic surveillance, Congress should proceedparticularly carefully. There are now a mix of provisions that, iftaken
together, would allow more people in government to monitor moreelectronic communications of Americans for more reasons under a lowerlegal
standard than is currently permitted under law. And this newstatutory authority would be broadly exercised in cases completelyunrelated
So, for example, the police could now use "Carnivore" to routinelycapture clickstream data from Internet users -- including the websites
visited and the pages downloaded -- under the same low standardsthat currently permit government access to telephone numbers dialed.
Another provision would significantly expand the use of electronicsurveillance for computer crime investigations. Still another makesit
easier to seize voicemail.
It may be appropriate for Congress to act on a few matters quickly --
improving border security and ensuring adequate resources fortranslation and interpretation -- but the vast majority of legislativerecommendations
now being faxed around Washington create sweepingsurveillance authority without justification. The adoption now of anynew law enforcement
powers unrelated to the investigation andprevention of terrorist acts should be opposed.
Marc RotenbergElectronic Privacy Information Center
"But, in a time of widespread anxiety, it is harder to fend off thesiren song of fear sung by those who would have us trade in a littleliberty
for a little more safety. There is no such thing as a littleliberty. Before you know it, you don't have any, and America is nolonger
the shining beacon of equality and freedom that terroristsloathe."
Atlanta Journal and Constitution, September 16, 2001 http://www.accessatlanta.com/ajc/epaper/editions/sunday/opinion_b34a146ad10661f10008.html
"Last week's terrorist attacks caught the United States painfullyunprepared. Whether the carnage was preventable or not, this tragedy
-- and the glaring intelligence failures that let it happen -- mustnot be used as a pretext for measures that endanger the fundamentalfreedoms
that are our birthright. Yes, tough and pragmatic laws areneeded to prevent terrorism and espionage. And that should includekeeping
closer tabs on visitors to our country. But terrorism willhave won if those laws unnecessarily fetter the fundamental civilliberties
that have distinguished the United States from the rest ofthe world."
Baltimore Sun, September 19, 2001 http://www.baltimoresun.com/
"There is general acknowledgement that society's delicate balancebetween freedom and security will tip toward greater security at
theexpense of individual liberties. But the exact spot along thatcontinuum where Americans will tolerate restrictions on their freedoms
-- and where they will resist -- has not yet been located. Vigilancewill be needed to make sure that the precious freedoms central
to theAmerican idea are not eroded by equally necessary new safetyprecautions."
Boston Globe, September 20, 2001 http://www.boston.com/globe/
"The true measure of the effectiveness of this attack by a shadowy,
hate-filled enemy will lie in how we reassess ourselves and our placein the world, and how we redefine, as inevitably we will, the
balancebetween individual liberty and collective, national security. If welose our liberties in the name of safety, the terrorists
will havewon. That cannot, must not, happen."
The Buffalo News, September 16, 2001 http://www.buffalonews.com/editorial/20010916/1028304.asp
"[C]ivil libertarians have good reason to be wary of proposals toexpand the government's power to go after suspected terrorists.
Inwartime, some people consider basic rights a luxury we can do without.
. . . At times like this, any ideas to help law enforcement againstterrorists deserve consideration
and careful inspection to ensurethat they will hamper our enemies more than they will hurt ourliberties."
Chicago Tribune, September 20, 2001 http://www.chicagotribune.com/news/opinion/chi-0109200048sep20.story?coll=chi%2Dnewsopinion%2Dhed
"[T]he terror attack unleashed on America must not become an excusefor suspending basic American principles and values. .
. . Specialcare should be taken to ensure that ethnic profiling of people of Arabor South Asian background is used judiciously and
sparingly bylaw-enforcement officials. The hunt for suspected terrorists orterrorist sympathizers can't justify a descent into unjust
policemethods. Wars sometimes occasion a lapse in democratic processes, andthe situation following the Sept. 11 attacks is being
characterized as'war.' This must not mean a lapse in basic civil liberties, or in thecivility with which all people are treated
in the US."
Christian Science Monitor, September 18, 2001 http://www.csmonitor.com/2001/0918/p8s1-comv.html
"Although more value does need to be placed on low-tech humanintelligence gathering, other tools of eavesdropping need to be usedwhile
balancing the civil liberties of Americans. Proposals to grantintelligence agencies more latitude need to be revisited and debated."
Dallas Morning News, September 17, 2001 http://www.dallasnews.com/
"[A] frightful picture is emerging. It seems that American leadershiphas resolved the tension between security and freedom
by givingsecurity the priority. Without a debate over how far we canjeopardize our freedom in pursuit of security, we seem to be
inclinedtoward doing whatever it takes to feel safer. . . . Imagine beingstopped by a police officer for speeding and when he asks
you for yourID, you reveal not only your name and address but also your religion,
your ethnic and national origin, your financial record, and police orimmigration record if any. This is not only a form of profiling
butalso an invitation for discrimination. The smart cards, ifimplemented, would be the end of privacy. . . . We must act now. Iinvite
all who are concerned about our freedoms and the quality of ourcivil society to let Washington know our concerns now."
Detroit Free Press, September 18, 2001 http://www.freep.com/voices/columnists/ekhan18_20010918.htm
"Historically, it has been at times of inflamed passions and nationalanger that our civil liberties proved to be at greatest risk,
and theunpopular group of the moment was subject to prejudice and deprivationof liberty."
Detroit News, September 21, 2001 http://detnews.com/
"[W]e must uphold our values and protect our constitutional rights.
While retaliating for last week's attacks and upgrading ourintelligence and national security, we must be sure to maintain theimportant
principles - of civil liberty, ethnic and religioustolerance, and freedom of expression - that are the foundation andstrength of
our nation. If we allow terrorists to alter our values orway of life, we hand them a victory."
Indianapolis Star, September 16, 2001 http://www.indystar.org/
"It is one thing to pass emergency legislation; quite another to makeit a permanent part of our law. Any congressional enactment
shouldcome with a sunset provision, requiring the law to lapse after twoyears unless it is reenacted. During the interim, Congress
shouldcreate a bipartisan commission to consider the fundamental questionsat stake. Then, we can consider more permanent legislation
after theinitial panic has subsided. We have used similar devices in the past.
. . . This time, our tradition of civil liberties is being placed atrisk, and there are special reasons that make a sunset provision
evenmore appropriate. The most obvious is the rush with which thelegislation is being pushed through Congress. . . . The rise ofterrorism
undoubtedly requires a serious debate over the properbalance between liberty and security in the 21st century. ButCongress should
not provide permanent answers when we have not evenbegun to ask the right questions."
Los Angeles Times, September 20, 2001 http://www.latimes.com/news/opinion/la-092001ackerman.story
"Do Americans really think well of the 'whatever-it-takes' battle cry?
They shouldn't. There are all sorts of 'whatevers' this country couldbut shouldn't embrace to fight terrorism. It could unleash
police tosearch apartment blocks where immigrants are known to live -- hopingto root out a terrorist needle in the haystack. It
could scrap therule that suspects be told of their rights to a lawyer and to remainsilent -- hoping that hapless confessions of terror
plots will follow.
It could jail suspicious foreigners for weeks -- hoping thatincriminating evidence might eventually show up. Many Americansrecoil
at the thought of such blunt tactics, even if they can't saywhy. They sense something un-American about combating terrorism byscrapping
the rule of law. They see the folly of defending the landof the free by shrinking its freedoms. . . . Even if Congresssubscribes
to the 'whatever-it-takes' philosophy, it's not clear this[recently introduced] legislation should pass. The White House
hasmade no case that existing law enabled last week's attack or hinderedthe ensuing investigation. Nor has it established that squelchingcivil
liberties is a wise response to the threat of terror. In truth,
forsaking American freedom is precisely the wrong answer to the fearterrorists sow. It gives them the victory they seek. It flouts
anarticle of American faith: that just as some sacrifices must be madein safety's name, others must never be made."
Minneapolis Star Tribune, September 21, 2001 http://www.startribune.com/stories/1519/703260.html
"[O]ur constitutional freedoms may be about to face their mostserious test in several generations. We can't protect ourselves
fromsuicide bombers by blindly surrendering our liberty. To do so wouldonly ensure the victory of fanaticism."
The New Republic, September 24, 2001 http://www.thenewrepublic.com/
"There must be an exacting examination of how the country can facethis threat without sacrificing its liberties. . . . Americans mustrethink
how to safeguard the country without bartering away the rightsand privileges of the free society that we are defending. Thetemptation
will be great in the days ahead to write draconian new lawsthat give law enforcement agencies - or even military forces - a rightto
undermine the civil liberties that shape the character of theUnited States. President Bush and Congress must carefully balance theneed
for heightened security with the need to protect theconstitutional rights of Americans. That includes Americans ofIslamic descent,
who could now easily became the target for anotherperiod of American xenophobia and ethnic discrimination."
New York Times, September 12, 2001 http://www.nytimes.com/2001/09/12/opinion/12WED2.html
"If the idea takes root that civil liberties should not be permittedto stand in the way of a war on terrorism, at what point do securitymeasures
start to corrode the very society they are designed toprotect? . . . [it has been said that] Americans would accept neitheridentity
cards, so reminiscent of the domestic passports that peopleassociate with totalitarian states, nor the common European practiceof
closing a street at both ends and checking everyone there forimmigration violations. Where does a democratic society draw theline?"
New York Times (Associated Press), September 16, 2001 http://www.nytimes.com/2001/09/16/weekinreview/16GREE.html?pagewanted=2
"Unshackling the nation's intelligence agencies will be a more complextask, not least because it will run into a dilemma: At what
point willthe government's powers of investigation and security expand so muchthat they begin to erode the civil rights defining
a free society -
giving terrorists a moral victory? The balance between security andfreedom is delicate and hard to restore when collective fear tips
ittoward greater government control."
Newsday (New York, NY), September 18, 2001 http://www.newsday.com/
"[T]he United States Senate already has acted precipitately, passinglegislation Thursday evening that enables the FBI to obtain
warrantsfor electronic surveillance of e-mail and other computercommunications more easily. That initiative, which may result insevere
abrogations of individual rights, is probably the harbinger ofa wave of new restrictions and invasions by government. . . . [B]eforewe
assent to any such infringements, we ought to consider how littlehas been done to ensure our safety without affronting theConstitution.
. . . Nobody's freedom, for instance, would be harmed bysealing the pilot's cabin against intruders well before takeoff, or byinstalling
signal devices that would instantly alert authorities to acrime in progress. . . . Our leaders never tire of telling us thatAmerica
is the wealthiest, most technologically advanced nation in thehistory of the world, as well as the most free. Now is the time totell
them that we can afford to protect our people and our territorywithout undermining our freedom."
Salon.com, September 14, 2001 http://www.salon.com/news/col/cona/2001/09/14/rights/
"If we sacrifice our civil liberties the terrorists will have won. Wemust [act] in a way that preserves our civil liberties.
It can bedone."
San Diego Union-Tribune, September 16, 2001 http://www.uniontrib.com/
"In the heat of rightful, red-hot anger, this country may take actionsit will later regret. Congress is weighing a terrorist surveillancepackage
that clashes with personal liberty and encroaches on some ofour fundamental rights. This country is eager to move fast and hardin
response to the murderous attacks in New York and Washington. Noquestion, payback is due for the deaths and destruction, and thisnewspaper
supports a sustained and focused campaign to hunt down theculprits. Yet members of Congress must keep their heads in thismoment
of frustration and outrage. They need to ask tough questionsabout each proposed expansion of law-enforcement powers. They need
torealize that the U.S. Constitution is worth defending too."
San Francisco Chronicle, September 19, 2001 http://www.sfchron.com/
"To ensure that America's freedom remains strong, Congress should setaside partisan bickering to help the president track down terrorists.
. . . Likewise, members of the Senate and House need to keep Bush'swords fresh in their minds when considering proposals to reducesecurity
threats. The constitutional and privacy protections oflaw-abiding citizens ought not to be swept aside because of overlybroad or
hastily adopted new laws. The country may need new laws tohelp federal agents fight well-organized, tech-savvy terrorists. Butin
the heartbreak over these evil deeds, lawmakers must take time todiscuss any actions limiting the freedoms that distinguish America."
San Jose Mercury News, September 16, 2001 http://www0.mercurycenter.com/premium/opinion/edit/082562.htm
"'In a democracy, dissent is an act of faith. Like medicine, the testof its value is not in its taste, but its effects.'" I hope
PresidentBush, his inner circle and the members of Congress keep hearingFulbright's words echoing down the corridors now filled withpolicy-making
under duress. There must be room for constructivequestioning, even as those entrusted with grave decisions push quicklyto meet the
national emergencies in this chilling autumn of 2001.
Witness, please, the rich potential to shape consensus withoutabrogating basic democratic rights as Congress and the administrationwork
though the Bush administration's anti-terrorism proposals. . . .
Concurrent with Ashcroft's proposals, key lawmakers have acknowledgedthat legislating in haste can be cause for irreparable damage
to thevery rights with which America defines itself. Unlike the sudden,
transcendent disregard for budgets and the social programs that seemedessential two weeks ago, the regard is high for protecting bothnational
security and the rights we enjoy as free people. . . . Justpowers are derived from the consent of the governed, whether in timeof
war or peace."
St. Paul Pioneer Press, September 21, 2001 http://www.pioneerplanet.com/opinion/ocl_docs/139821.htm
"If we are to win the war against terrorism, we will need to employnew weapons. Nevertheless, Congress must proceed very carefully
as itconsiders Attorney General John Ashcroft's sweeping proposals. Movingtoo hastily or going too far could result in unwarranted
curbs onconstitutional liberties."
Sun-Sentinel (Fort Lauderdale, FL), September 21, 2001 http://www.sun-sentinel.com/
"Celebrating the openness of our society, and its ability toaccommodate diversity without constantly coming to blows, is moreimportant
now than ever. This is what the terrorists who have beenimplicated in Tuesday's attacks do not understand about America, andthis
is why they have chosen to attack us."
The Times-Picayune (New Orleans), September 16, 2001 http://www.timespicayune.com/
"Essential questions confront us, such as the degree of liberties wewill be willing to surrender in the name of security. The answerswill
not come quickly or in unanimity. These rough roads ahead shouldnot be overlooked in the initial closing of ranks around PresidentBush.
But this struggle is what separates democracy from the world ofsuicidal zealots."
USA Today, September 21, 2001 http://www.usatoday.com/news/e98/raasch/r110.htm
"This is complex legislation that, as Mr. Ashcroft himself has noted,
would affect civil liberties as well as law enforcement. The purposeshould be not to rush and rubber-stamp but to get the balance
That's particularly true of the proposals that would infringe ontraditional liberties."
Washington Post, September 20, 2001 http://www.washingtonpost.com/
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END EPIC Alert 8.18