Do Old Privacy Protections Apply in Digitized, Terrorized Society?

Whose life is it anyway?

How much privacy will you trade for potential security? How much did you think you had?

If you live your life on-line, does that make you an open book?

You’d think we’d all be debating these questions as we enter the technological future, both in terms of what we think and where and how the issues are to be resolved. But you’d think wrong. The most striking thing about our lurch forward is how fast we’re moving without squarely confronting and deciding significant questions that should be guiding our way.

The Washington Post summary of a soon-to-be released Government Accounting Office report says the government has already committed significant privacy violations in testing a new and highly sophisticated data mining system.

ADVISE, which stands for Analysis, Dissemination, Visualization, Insight and Semantic Enhancement, uses mathematical algorithms to look for connections in data that might reveal suspicious people, behavior, places, or relationships. The news in the Post story was not only that there was a dispute about whether real data had been used in the tests-- which might violate existing policies against using data collected for one purpose for another-- but just how far along the Department of Homeland Security is in its experimentation with cutting edge technology in the field of data mining.

Congress reportedly asked for the GAO report because they had no idea what the government was doing in data mining. Senate Judiciary Committee chairman Pat Leahy is said to be carrying a bipartisan bill that would require the Bush administration to tell Congress the extent of data mining. This would, it seems, require a new act of Congress.

Otherwise, the point seems to be that they don’t have to tell anyone anything, and certainly don’t need anyone’s approval. Congress called off the last program like this one. Now, they’re further along, and Congress had done nothing.

The rule is that the fourth amendment protects an individual’s reasonable expectations of privacy. You have the privacy you thought you had. If you went in the phone booth and closed the door, you could expect you were alone. But who does that anymore?

In a digitized, terrorized society, how much privacy do we think we have in the details of our lives, our hotel and airline lives connected to our financial lives to our lives on-line? Have we lost it because we gave it away, not realizing it was ours in the first place?

The old idea was that it was basically a good thing to limit police investigations to crimes and criminals, to insist that law enforcement generally know who or what they were looking for before they started looking, especially in private papers. The idea was that this protected people against a too-powerful police state free to engage in fishing expeditions to terrorize the citizenry.

In a nation at war against terror, is there any limit to where the government should be able to look, just to see what’s there? If data mining could have exposed (or did) the hijackers’ plans for 9/11, does anyone care that much about their airline tickets being scanned?

The fourth amendment warrant requirement embodies a view that privacy finds its best protection in the imposition of an objective judge who decides in advance whether to permit a search; forcing police to go to magistrates limits the potential for abuse even if most magistrates are rubber stamps; especially since courts rarely deny warrants, there is no reason to deny their responsibility to grant them.

The problem with requiring warrants to data mine is that there are no obvious standards to apply to judging them. Warrants are dandy, but what is supposed to be the basis for granting them? If the courts are to be involved, they need law to apply, or it looks a lot like judicial lawmaking.

In short, Congress clearly needs to get to it, sooner not later. If finding out what’s going on is controversial, imagine trying to exercise any control over it.

It’s not that I don’t trust the government. But I would like to know who inserted the anti-Semitic rants into the transcripts of one of the defendants on trial for terrorism related charges in Dallas. Trust but verify is the constitutional rule.

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was previously Professor of Law at Harvard Law School and was the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.

Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System,” and "Making the Case for Yourself: A Diet Book for Smart Women.”

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for

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