Protecting the Common Good: Technology, Objectivity, and PrivacyAuthor(s): Lisa NelsonSource: Public Administration Review, Vol. 62, Special Issue: Democratic Governance in theAftermath of September 11, 2001 (Sep., 2002), pp. 69-73Published by: Wiley on behalf of the American Society for Public AdministrationStable URL: http://www.jstor.org/stable/3110173 .

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Lisa Nelson* University of Pittsburgh

Protecting the Common Good: Technology, Ob jectivity, and Privacy

The rhetoric of public policy aher September 11 encourages us to believe that the preservation of freedom and the safety of the common good requires our universal acquiescence to techno- logical invasions of privacy. The purpose of this article is simply to warn that the rhetoric of public policy solutions post-September 11 may be inconsistent with the philosophical and legal framework of American democracy. While serving as a solution today, this rhetoric may pose a devastating blow to the balance of individual privacy and common good that is essential to the preservation of freedom.

Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rul- ers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal.

-Olmstead v. United States (277 U.S. 438 [1928])

Since September 11, 2001, the political context of free- dom has been juxtaposed against the increasing public policy concern of preventing terrorism. Historically, of course, the notion of freedom in American society has always faced the difficult task of balancing the rights of the individual and the common good. Yet the events of September 11 upset the balance between the spheres of individual privacy and the common good in a unique way. The rhetoric of the common good and the necessity of surveillance and information gathering coincide in legis- lative efforts to deter and punish terrorism. Because of the events of September 11, new technology, including innovations such as FaceIt and Carnivore software (Kerr 2000), has been subsumed by a new rhetoric. No longer is new technology necessarily viewed as a threat to indi- vidual privacy; rather, it is perceived as serving the com- mon good and protecting freedom as reflected in legisla- tive reactions such as the USA PATRIOT Act (P.L. 107-56, 115 Stat. 272 [2001]).

A rhetorical analysis is useful to explore the post-Sep- tember 11 imbalance between individual privacy and the

*With Jay Cost, University of Chicago.

common good. Through this analysis, the most persua- sive public policy solutions may be seen as inconsistent with the theoretical and legal foundations of our demo- cratic tradition. Here the rhetoric of public policy debates is of great concern as our public policy solutions are con- structed to combat terrorism. Post-September 11, the rhetoric of common good is more persuasive than claims of individual privacy and freedom in public policy mak- ing, potentially skewing the balance necessary to preserve democratic freedoms. More problematic, the rhetoric of technology after September 11 seeks to persuade us that technology is universal in its invasion and objective in its application. In short, the rhetoric of public policy after September 11 encourages us to believe that the preserva- tion of freedom and the common good requires our uni- versal acquiescence to technological invasions of privacy. Although surveillance is a useful and necessary aspect of criminal investigation, new developments in surveillance technology, as well as novel justifications of it, pose a unique public policy concern. As we will discuss in the last section, this concern does not rest easily in the tradi- tional theoretical and legal framework of privacy, par- ticularly in light of September 11.

Lisa Nelson is an assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She holds a law degree and a doctorate in political science, both from the University of Wisconsin- Madison. Her work is primarily in the field of social studies of science, tech- nology, and law. Email: Inelson@birch.gspia.pif.edu.

Protecting the Common Good: Technology, Objectivity, and Privacy 69

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The Objectivity and Universality of Technology

The events of September 11 created a fear of the invis- ible and the constant presence of terrorism, and technol- ogy is the panacea. In public policy debates, the rhetoric of objective scrutiny of technology universalizes the inva- sion of privacy, while the rhetoric of public safety neutral- izes the claims of individual protection. The end result is that technologies, such as Faceft and Carnivore (Kerr 2000), alter our resistance to invasion of individual pri- vacy by proclaiming objective application.

Faceft automatically detects human presence, locates and tracks faces, extracts face images, and performs iden- tification by matching against a database of people it has seen before or pre-enrolled users. Faceft computes the de- gree of overlap between the live faceprint and those asso- ciated with known individuals stored in a database of fa- cial images. In verification mode, the faceprint can be stored on a smart card or in a computerized record and identity is verified.

Carnivore is an email surveillance software created by the FBI to combat terrorism, espionage, information war- fare, child pornography, serious fraud, and other felonies by connection to an internet service provider such as America Online, Earthlink, or Prodigy. Carnivore inter- cepts the addressing information and content of a targeted user's electronic communications. Before September 11, the Department of Justice and the FBI asserted that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. ?? 2510-2522 [1994, Supp. 1998]) and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. ?? 1801-1863 [1994, Supp. 1998]) provide the legal authority for Carnivore's full-mode surveillance. While this claim of authority was questioned prior to September 11, current legal and public policy justifica- tions for the use of new technology are far more persua- sive. Before considering the problematic consequences of the public policy rhetoric, a discussion of the technol- ogy is necessary.

Carnivore filters information that is gathered using a one-way tapping device based on an internet protocol or email username. Information that is subject to court or- ders is gathered while, theoretically, all other extraneous data is discarded. Packets can be recorded in their en- tirety (full mode), or recording can be limited to address- ing information (pen mode), that is, internet protocol ad- dresses and usernames (Kerr 2000).

Both Facelt and Carnivore technology seem to be un- obtrusive and universal in their invasion of the realm of individual privacy, in part, because we are all potentially subject to its inspection. The perusal of technological sur- veillance is framed in the rhetoric of objectivity and prom-

70 Public Administration Review a September 2002, Vol. 62, Special Issue

ises the safety and protection of the innocent in return for its penetration of our privacy. Moreover, the objectivity of its intrusion assures us that its observation does not signal our guilt. In this way, the realm of individual privacy suc- cumbs to the rhetoric of universality and objectivity of tech- nological surveillance. After September 11, the rhetoric of public policy weighs the shared loss of individual privacy against the shared cost of terrorism in the statutory lan- guage of the USA PATRIOT Act. The notion of the com- mon good is no more powerful than in the rhetoric of pa- triotism following September 11.

The Rhetoric of Patriotism The rhetoric of patriotism is a powerful metaphor for

the common good and, perhaps more problematic, a con- trolling argument against claims of individual privacy and toleration. Days after the collapse of the World Trade Cen- ter, Congress quickly passed the USA PATRIOT Act, an acronym for "Uniting and Strengthening America by Pro- viding Appropriate Tools Required to Intercept and Ob- struct Terrorism." Among the provisions of this bill are measures that heighten security in various ways (P.L. 107- 56, 115 Stat. 272 [2001]).

The USA PATRIOT Act significantly expands law enforcement's authority to invade privacy without meaning- ful judicial oversight. For example, Section 216 of the act allows law enforcement officers to access electronic com- munications simply by certifying to a federal judge that the records of a person's electronic communications are "rel- evant to an ongoing criminal investigation." The judge then must issue an ex parte order giving law enforcement access to the person's "dialing, routing, addressing, and signaling information." In addition, Section 216 permits law enforce- ment to record and review a list of all internet sites a person visits without judicial review, and the search is not limited to national security investigations. This provision potentially authorizes physical searches and wiretaps without establish- ing a probable cause of crime. The information obtained must meet only the standard of relevancy to an ongoing crimi- nal investigation. The act also expands the use of secret searches. Normally, a person is notified when law enforce- ment conducts a search. But if a court finds "reasonable cause to believe" that immediate notice would adversely affect the investigation, the government may delay notice for a "rea- sonable period." In addition, the USA PATRIOT Act allows for the broad sharing of sensitive information in criminal cases among intelligence agencies without judicial review or few safeguards regarding the future use or dissemination of such information.

The USA PATRIOT Act's expansion of control mea- sures for money laundering is also extensive. Under the new law, financial institutions are required to monitor daily

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financial transactions even more closely and to share in- formation with other federal agencies. The law provides for no judicial review and does not mandate that law en- forcement give the person whose records are being re- viewed any notice. Similar measures were proposed in 1999 and were abandoned in light of financial privacy concerns. In the wake of September 11, however, this rule passed with little fanfare. The rhetoric of patriotism domesticates the use of technology in the name of public safety and the common good. While this current rhetoric is persuasive, how does the historically developed legal framework of privacy figure into post-September 11 policy initiatives?

The Legal Framework of Privacy The notion of privacy has evolved into several different

doctrinal concerns: autonomy, intrusion, and information privacy. In particular, the right to privacy with regard to intrusion and information are of great concern with the advent of new technology. In 1967, the Supreme Court articulated a two-pronged test that fleshed out Fourth Amendment protection against intrusion. The test devel- oped in Katz v. United States (389 U.S. 347, 350 [1967]) measures both subjective and objective factors. In the first prong of the test, the individual must have exhibited an actual (subjective) expectation of privacy. The second prong then assesses whether that expectation is one that society is prepared to recognize as reasonable. In this test, the hold- ing in Katz developed the notion of a reasonable expecta- tion of privacy standard for determining whether a tele- phone wiretap constitutes a search under the Fourth Amendment. The subjective prong of the Katz test assesses whether an individual under surveillance has an actual ex- pectation of privacy. If a subjective expectation of privacy is established, the second prong of the Katz test assesses whether that "expectation is one that society is prepared to recognize as reasonable." Recognizing that the Fourth Amendment protects people and not places, Katz expanded the scope of the Fourth Amendment's protection by rede- fining the meaning of a search to include any invasion of an area where an individual has a reasonable expectation of privacy. The Court maintained that a search conducted without a warrant and probable cause is, per se, unreason- able. While the Katz test requires courts to consider an individual's Fourth Amendment interest in privacy, does the doctrine adequately protect against technological in- vasions of privacy, especially in the political context after September 11?

The first prong of privacy in the Katz doctrine hinges on the subjective expectation of the individual. Yet the sub- jective expectation of privacy is difficult to pinpoint in these technological times. Not only is it difficult to determine the occurrence of technological surveillance and informa-

tion gathering, it is even more difficult to know what steps must be taken to protect against intrusion. The events of September 11 contribute yet another factor to the analysis of public policy, redefining our expectation of privacy to one of protection against harm with the use of technology. Similarly, the second prong of Katz-the reasonable ex- pectation of privacy from a societal point of view-is skewed toward the expectation of revelation rather than privacy claims. Where the threat of the enemy is covert, our tolerance for claims of privacy are undermined and, thereby, the standard for reasonableness is distorted. It fol- lows that if the technology protects against covert acts of terrorism, then the reasonableness of expecting to be free from observation may be undermined. Further, the covert nature of terrorism lowers societal tolerance for claims of individual privacy, swaying the theoretical balance between toleration for individual privacy and protection against harm in a liberal democracy.

While the Katz doctrine was a response to the Court's recognition that technology could make an invasion of pri- vacy possible without physical intrusion, recent techno- logical advances in surveillance equipment, coupled with the political context of September 11, challenge conven- tional application of the Katz test. Additionally, the rheto- ric of necessary acquiescence to surveillance and informa- tion gathering post-September 11 is couched in terms of the common good and public safety, while claims to indi- vidual privacy are questioned and potentially undermined. More troubling from a theoretical and legal perspective is that subjective expectations of privacy may be not only attenuated, but also viewed as a possible desecration of the common good. Thus, the rhetoric of individual privacy potentially falls victim to the necessity of protecting the common good without a suitable legal and theoretical framework to protect against its ruin. There is yet another dimension of privacy that is arguably affected by the events of September 11. While the Katz doctrine is not well suited to ensure the guarantee of individual privacy from a legal perspective, the implicit requirement of toleration nested in the philosophical idea of privacy is also threatened post- September 1 1.

Privacy To best understand the ever-present tension between

individual privacy and the common good necessary to the idea of toleration, it is essential to develop a historical un- derstanding of the liberal concept of privacy from its foun- dations in Hobbes's Leviathan and Locke's Letter Con- cerning Toleration through contemporary liberal doctrines typified by Rawls's A Theory of Justice. Liberal theorists rarely speak of a right to privacy in explicit terms. While liberal theorists do not discuss privacy directly, they have

Protecting the Common Good: Technology, Objectivity, and Privacy 71

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developed a firm ideal of toleration, which stems from their ambivalence to the good life. Privacy, then, can be con- ceived as existing in the penumbras of liberal toleration. It is the positive right that logically follows from the ideal of toleration. Thus, we begin the discussion of privacy in two sections. The first traces the historical development of lib- eral ambivalence toward the good life, and its conception of toleration that follows. The final section will demon- strate how privacy is a consequence of this historical de- velopment and highlight its importance in light of Sep- tember 1 1.

Locke on Toleration John Locke published his Letter Concerning Toleration

in 1689. In that essay, Locke argued explicitly for tolera- tion based on a sort of spiritual skepticism. Locke was the secretary to the Earl of Shaftsbury, the principal opponent of England's Catholic King James II. Frustrated with more than 150 years of civil unrest, resulting mainly over reli- gious conflict, Locke asserted, "The Commonwealth seems to me to be a Society of Men constituted only for the pro- curing, preserving, and advancing of their own Civil Inter- ests. Civil Interests I call Life, Liberty, Health, and Indolency of Body; and the Possession of outward things, such as Money, Lands, Houses, Furniture, and the like ... the Care of Souls is not committed to the Civil Magistrate, any more than to other men" (1983, 23).

From Locke, we might infer that the government's role is to protect only the individual from outward dangers, not the individual's beliefs: "therefore the care of each Man's Salvation only belongs to himself' (47). Locke does not imply that there is no spiritual good life, but that the prin- ciples of such are a matter of belief. In other words, the good life may exist, but it is fundamentally unknowable in any sense. Locke writes, "There is only one of these which is the true way to Eternal Happiness. But in this great vari- ety of ways that men follow, it is still doubted which is this right one. Now neither the care of the Commonwealth, nor the right of enacting Laws, does discover this way that leads to Heaven more certainly to the Magistrate, than every pri- vate Man's Search and Study discovers it unto himself' (27).

Before continuing, it is important to note that when Locke discusses the "true way" and the "care of souls," he is speaking about Protestant interpretations of the Chris- tian religion. However, what he discusses may be general- ized into his attitude toward the good life. Locke, a Chris- tian, believed the good life comes from internalizing and practicing Christian beliefs. This, for Locke, is a personal matter of belief that cannot be categorically knowable and, therefore, should not be enforced by the state.

Throughout the next two centuries, liberalism devel- oped as a political philosophy upon the philosophical

72 Public Administration Review * September 2002, Vol. 62, Special Issue

ground of Locke. Theorists such as David Hume, Immanuel Kant, and Adam Smith developed and extended Locke's conception of limited government and the pro- tection of individual rights. John Stuart Mill, for instance, wrote in this philosophical tradition. Mill, the son and pupil of utilitarian James Mill, was trained from birth as a strict utilitarian by his father and studied the political thought of Jeremy Bentham. Around the age of 20, Mill set out to establish a more liberal ideal of utilitarianism. In 1859, he published what was perhaps his most influ- ential and lasting essay, On Liberty. In this work, Mill argued that government should be established on the fa- mous harm principle, which he stated as follows: "That the sole end for which mankind is warranted, individu- ally or collectively, in interfering with the liberty of ac- tion of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others" (1996, 14).

The harm principle may be interpreted as an argument for government toleration of all actions that do not endan- ger other individuals. Mill argues that one's certainty of truth is no reason to suppress disagreement and dissen- tion, because this assumes that one's own certainty is the same as absolute certainty. According to Mill, the only way to achieve rational certainty comes from a full airing of alternative ideas and opinions.

How does this concept fit into the understanding of the liberal good life and toleration? Mill does not believe there is a categorical good life that is either knowable or constant. Freedom and toleration provide for a multiplic- ity of opinions, a requisite condition for practical knowl- edge; it also promotes individuality, which is necessary for human development.

Privacy, Toleration, and September 11 Two questions remain for our analysis: What is the re-

lationship between toleration and privacy? How has Sep- tember 11 affected the popular and political perception of privacy? First, let us examine privacy in relation to tolera- tion. Simply stated, privacy may be construed as the posi- tive protection of toleration. A liberal government whose premise is the protection of individual safety and property, and whose purpose is not to promote a set of virtues, must tolerate individual behavior so long as it does not violate the safety and property of other individuals.

It is appropriate here to revisit the history of liberal thought in terms of privacy. Liberals throughout the ages have disagreed on almost every specific political issue un- der the sun. Many contemporary political ideologies can refer to a liberal philosopher for the basis of their thought. Libertarians can refer to Locke and Robert Nozick. Advo-

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cates of social justice can refer to John Rawls. Most of the time, for every liberal philosopher who argues one point, there is another who disagrees. Ronald Dworkin charac- terizes this ambivalence as the cornerstone of all liberal philosophers. He writes, "Government must be neutral on what might be called the question of the good life.... Po- litical decisions must be, so far as is possible, independent of any particular conception of the good life, or of what gives value to life" (Dworkin 1985, 19).

The right to privacy, however, is unique in that the phi- losophers of liberal ideology are unanimous in its promo- tion. Liberals may disagree as to the proper redistribution of wealth or the form of government that best promotes liberal society, but they all agree that toleration and pri- vacy are key characteristics of a liberal state, just as they believe the state must ensure protection against harm. The philosophical divide between toleration and the protection against harm, which has demarcated the line between in- dividual privacy and common good, has long existed in a legal framework that did not contemplate the events of September 11. Now, the rhetorical balance between indi- vidual privacy and the common good has shifted. Where the potential for harm in a liberal democracy exists, tolera- tion is jeopardized.

Conclusion After September 11, the rhetoric of the common good

and the necessity of surveillance and information gather- ing are much more prevalent in public policy debates re- garding the protection against terrorism. The end result is that policy regarding new technology has been sub- sumed by a potentially dangerous new rhetoric. No longer is new technology necessarily viewed as a threat to indi- vidual privacy; rather, it is viewed as serving the com- mon good, as reflected in legislative reactions such as the USA PATRIOT Act. But are the public policy solu- tions consistent with the theoretical and legal foundations of our democratic tradition? In the creation of public policy post-September 11, it is necessary to be mindful of the philosophical divide between toleration and the protection against harm that has demarcated the line be- tween individual privacy and common good. Clearly, when the potential for harm exists in a liberal democ- racy, toleration of individual privacy is jeopardized. This is not a unique occurrence in American history. Yet, unique to the aftermath of September 11 are the nature of the threat and the use of new technology to ferret it out. The rhetoric of public policy after September 11 encourages us to believe that the preservation of freedom and the safety of the common good requires our universal acqui- escence to technological invasions of privacy. This is sim- ply to warn that the rhetoric of public policy solutions

post-September 11 may be inconsistent with the philo- sophical and legal framework of American democracy. While serving as a solution today, this rhetoric may pose a devastating blow to the balance of individual privacy and common good that is essential to the preservation of freedom.

References Dworkin, Ronald. 1985. A Matter of Principle. Cambridge, MA:

Harvard University Press. Hobbes, Thomas. 1996. Leviathan. London: W.W. Norton. Kerr, Donald M. 2000. Fourth Amendment Issues Raised by

the FBI's "Carnivore" Program. Hearing before the House Committee on the Judiciary, Subcommittee on the Consti- tution, 106th Cong., 1st session. Available at http://www. fbi.govlcongresslcongressOOlkerrO72400.htm. Accessed May 1, 2001.

Locke, John. 1983. A Letter Concerning Toleration. Indianapo- lis, IN: Hackett Publishing Co.

Mill, John Stuart. 1996. On Liberty. In Mill: Text, Commentar- ies, edited by Alan Ryan. London: W.W. Norton.

Rawls, John. 1999. A Theory of Justice. New York: Belknap.

Protecting the Common Good: Technology, Objectivity, and Privacy 73

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