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Balancing National Security and Individual Rights

  • Amitai Etzioni
Chapter
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Part of the Palgrave Macmillan’s Studies in Cybercrime and Cybersecurity book series (PSCYBER)

Abstract

This chapter deals with the issues that followed from the disclosures in 2013 about the National Security Administrations (NSA) two surveillance programs. One, known as Bulk Collection of Telephone Metadata, collects, stores, and analyzes the records of a significant portion of the phone calls made and received in the United States (from here on, this program will be referred to as phone surveillance). The other, known as PRISM, collects private electronic communications from a number of online providers such as Google and Facebook and is focused on non-Americans.1 This chapter focuses on the specific issues raised by these two programs, although both programs have attributes and raise issues that are also relevant to other national security programs. I draw on a liberal communitarian approach in its assessment of the issues at hand. Section A of this chapter discusses this approach. Section B responds to critics of the programs who hold that such surveillance is neither needed nor effective. Section C examines the specific grounds on which phone surveillance has been criticized and justified. Section D lays out a similar analysis regarding the PRISM program. Section E examines the alternative ways both surveillance programs may be better controlled, on the grounds that the more the government conducts surveillance the more it needs to be watched.

Keywords

National Security Foreign National Fourth Amendment Phone Company Transportation Security Administration 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 2.
    See Amitai Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (New York: Basic Books, 1996).Google Scholar
  2. 3.
    I have previously discussed this balance in the context of privacy and public health, public safety, sex offenders, and freedom of the press, among other rights. See Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999); “The Privacy Merchants: What Is To Be Done?” Journal of Constitutional Law 14, 4 (2012): 929–51; and How Patriotic Is the Patriot Act?: Freedom Versus Security in the Age of Terrorism (NY: Routledge, 2004).Google Scholar
  3. 4.
    Gerald Gaus and Shane D. Courtland, “Liberalism,” in Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), http://plato.stanford.edu/entries/liberalism/. See also, John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1999).Google Scholar
  4. 6.
    For a broader discussion of this strand of communitarianism, see Russell A. Fox, “Confucian and Communitarian Responses to Liberal Democracy,” The Review of Politics 59, 3 (1997): 561–92. See also, Daniel Bell, “Daniel Bell on Confucianism and Free SpeechSpeech,” audio interview with Free Speech Debate, (February 16, 2012), http://freespeechdebate.com/en/media/daniel-bell-on-confucianism-free-speech/; andCrossRefGoogle Scholar
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  6. 7.
    Jed Rubenfeld, “The Right of Privacy,” Harvard Law Review 102, 4 (1989): 740. The development of a right to privacy with respect to torts dates back a bit further to 1890 with the publication of Warren and Brandeis’s “The Right to Privacy.” SeeCrossRefGoogle Scholar
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  8. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” Harvard Law Review 4, 5 (1890): 193–220. The exact emergence of the notion of a Constitutional right to privacy is a bit more difficult to exactly pinpoint. For more genealogy of constitutional right, see William M. Beaney, “The Constitutional Right to Privacy in the Supreme Court,” The Supreme Court Review (1962): 212–51.CrossRefGoogle Scholar
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    Anthony Lewis, Freedom for the Thought We Hate: A Biography of the First Amendment (New York: Basic Books, 2007), 23.Google Scholar
  10. 51.
    See Matthew Kroenig and Barry Pavel, “How to Deter Terrorism,” The Washington Quarterly 35, 2 (2012): 21–36, http://dx.doi.org/10.1080/0163660X.2012.665339: “In contrast [to the Cold War], deterrence against terrorism can only be partial at best. The United States cannot deter all terrorist activity, but as long as Washington can deter certain types of terrorists from engaging in certain types of terrorist activity, deterrence can contribute to national security goals.”CrossRefGoogle Scholar
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    Robert Pape, Dying to Win: The Strategic Logic of Suicide Terrorism (New York: Random House, 2006) ch. 2 and 5.Google Scholar
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    Lucian E. Dervan, “The Surprising Lessons from Plea Bargaining in the Shadow of Terror,” Georgia State University Law Review 27, 2 (2011): 239–98.Google Scholar
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  15. 69.
    See Mark D. Young, “National Insecurity: The Impacts of Illegal Disclosures of Classified Information,” I/S: A Journal of Law and Policy for the Information Society, 10, 1 (2014): 367: “The complexities, technology, and ambiguity of the modern security environment make it unlikely that any single intelligence source or program will provide a “smoking gun” on a national security threat […] To overcome these realities, the Intelligence Community must apply a dizzying set of analytic techniques […] This is no small task and it requires a mosaic of information, to include bulk metadata.”Google Scholar
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  18. 80.
    Matthew Tokson, “Automation and the Fourth Amendment,” Iowa Law Review 96 (2011): 581, 586.Google Scholar
  19. 91.
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  24. 150.
    William A. Schabas, “Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?” Brooklyn Journal of International Law 21 (1995): 277, 280, as quoted in Kristina Ash, “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence,” Northwestern Journal of International Human Rights (2005), http://scholarlycommons.lawnorthwest-ern.edu/cgi/viewcontent.cgi?article=1018&context=njihr.Google Scholar
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    Corey M. Then, “Searches and Seizures of Americans Abroad: Re-examining the Fourth Warrant Clause and the Foreign Intelligence Exception Five Years After United States v. Bin Laden,” Duke Law Journal 55 (2005): 1064.Google Scholar

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© Amitai Etzioni 2015

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  • Amitai Etzioni

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