TCS Daily


Terror or Tradeoffs?

By Duane D. Freese - June 13, 2006 12:00 AM

So, 17 Canadian residents and citizens -- not foreign operatives -- are arrested with three times the one ton of ammonium nitrate fertilizer used in the Oklahoma City bombing.

The arrests complete a string of more than 30 dating from last August that involved police and intelligence agencies on three continents. Most of the suspects are young men, and some appear to be very communications- and Internet savvy.

As Stewart Bell reported in Canada's National Post, one of those arrested in London as part of a group called the Mughal Network was 22-year-old Younis Tsouli, a hacker known as Irhabi 007. Tsouli allegedly subscribed to U.S. Internet services using stolen credit cards to hack in to Web sites, according to SITE, to "disseminate violent materials including manuals of weaponry, videos of jihadist feats, such as the beheadings perpetrated by Iraqi insurgents, and other inflammatory media files." His computer hard drive included photographs of sites in Washington, D.C., as well as a video on how to make a car bomb.

This isn't the first set of Canadian Muslims implicated in a terrorist plot. In 1999, only an observant U.S. customs official thwarted the Millennium Bomber, Ahmed Ressam, from crossing over from Canada with a trunkload of nitroglycerin to blow up Los Angeles International Airport. In 2004 Mohammed Momin Khawaja, a 24-year-old computer program worker in Canada's Department of Foreign Affairs was arrested as part of an alleged plot involving six Londoners now on trial in England.

The group of six was caught with a half-ton of the potentially deadly ammonium nitrate fertilizer that they allegedly wanted to use to blow up a shopping center and night club, among other things. One wiretap provided in that trial has Khawaja, who will be tried in Ottawa in January, describing how to mock up a mobile phone to trigger a bomb: "The receiver will be similar to a mobile phone. ... The receiver gets the signal, when you press the button on the transmitter then you get voltage. ... If you have the detonator wires hooked up, that will send a charge down the line to whatever you're sending it to."

Serious tradeoffs

All of this should remind major media, privacy advocates and libertarians, both civil and sundry, that there are real terrorists out there. They aren't averse to using our communications systems to try and kill us, and overzealous privacy protections will help them accomplish that task.

I hate to admit that.

I loathed the Federal Bureau of Investigation's Carnivore and its sniffing of email, and I still think that too many security regulations on the Internet may delay or subvert economic gains from new technology. Privacy is vital to commerce, democracy, freedom and human dignity. And protections of the Fourth Amendment against search and seizure extend beyond your home, as the Supreme Court ruled in Katz v. the United States in 1967, to the person in situations where they can be reasonably expected.

Further, I think the Bush administration has handled its terrorism surveillance poorly by failing to secure sufficient bipartisan support to raise it above suspicion.

Nonetheless, just as sexual privacy in the bedroom doesn't extend to acts of rape or sexual abuse of a spouse, neither can the privacy shield be allowed to protect mass murderers and their plots. And that, I fear, is what the overzealous civil libertarian response to the Administration's surveillance activities risks -- particularly when people insist on privacy protections for new technologies that never applied to the old ones.

Consider the Bush Administration's monitoring of international communications in order to root out conversations between suspected al-Qaeda terrorists abroad and people here. The New York Times has consistently portrayed it as new, forbidden policy. But review a little history, and we'll find a rich history in this type of protective policy apparatus.

A little history

Letters -- old technology -- coming into the country have been open to inspection by customs inspectors, while letters abroad have been open to foreign officials. Even internally, letters addressed to Soviet or Eastern bloc nations were inspected throughout much of the Cold War. All without warrants.

The border exception and other national security concerns have always trumped international communications privacy. A system called Echelon, involving Britain, Canada and Australia with the United States, has been in operation since World War II. It reputedly helped in the capture of Khalid Shaikh Mohammed, the mastermind behind the September 11th attacks and in thwarting a similar bombing planned for Los Angeles in 2002.

Those who express surprise at U.S. eavesdropping on international phone traffic today must wonder why spies had to use diplomatic pouches or hid microfilm in hollowed out shoes in the past. As Ressem found out, your privacy protection ends at the border. Would privacy advocates prefer to have had the customs official acquire a warrant to prevent him from coming in?

But what about the "domestic surveillance" USA Today exposed in May? Isn't the National Security Agency (NSA) collecting call records, noting the telephone numbers, duration and time of calls for "millions of Americans" some gross new violation of those Americans' civil liberties?

Hardly. Back in 1979, the Supreme Court upheld the legality in Smith vs. Maryland of something called a pen trace. A pen trace tracks the calls a person makes, providing their timing and duration. In Smith, Harry Blackmun, author of the privacy protection for Roe v. Wade, declared that individuals have no reasonable expectation of privacy in information voluntarily turned over to third parties. That applies to telephone numbers required for charging customers for their calls or, in another circumstance, addresses on envelopes, so that mail carriers can deliver letters.

The NSA activity amounts to massive scale pen trace, but for a higher cause -- not to catch a thief as in Smith but to root out terrorists intent on mass murder. And unlike a police pen trace, the NSA has sought to conduct its surveillance of networking without tying numbers to names first. Further, the collection of numbers weren't wiretaps, as some commentators and comedians such as Jay Leno have falsely indicated. They were not dealing with the content of calls, but with patterns of calling, while maintaining callers' anonymity.

USA Today's current editorial board ignored these distinctions, inferred without knowledge that the activity was useless, and set an impossible bar for any government activity - i.e. that it be "foolproof" in not corralling any innocent individuals.

Perhaps the nation should eliminate Homeland Security entirely, because with 12 million illegal aliens the system certainly isn't foolproof. Or maybe we should give up tax collection, given all the cheats and erroneous investigations. That's not foolproof. Let's disband the Army, Navy, Air Force, FBI, CIA because they didn't prevent 9/11.

Rob Preston in Information Week noted the real issue is whether the government -- in order to protect us -- will be allowed to perform data mining of customer calling records as is done by "thousands of companies for their own fiscal ends." Probably including USA Today.

"The public has long viewed information technology as Big Brother incarnate, whether it's wiretaps, RFID tags, Web site monitoring software, or fraud-detection systems we fear are tracking our every move," Preston wrote. "But if we can't stomach letting our security agencies use technology -- albeit responsibly -- to isolate suspicious activity, then we're pretty much giving the bad guys the upper hand."

And if they get that upper hand, what will happen to privacy protections? History has a lesson there as well -- in Japanese internment camps, Civil War detention centers, and the host of things that happen when people really feel threatened.

Privacy can no more be made foolproof than security; not in a world where terrorism really exists.

Duane Freese is TCS Daily deputy editor.

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4 Comments

Terror or Privacy?
"Further, I think the Bush administration has handled its terrorism surveillance poorly by failing to secure sufficient bipartisan support to raise it above suspicion."

Duane, do you seriously think that bipartisan support is possible for anything the Bush Administration proposes?

To the democrats in Congress, nothing -- and I mean nothing -- instigated by the Bush Administation is acceptable. Doesn't matter that the lack of bipartisan support could put thousands of Americans in harm's way. It is more important to the "loyal" opposition to criticize Bush for potential political gain.

And, of course, the democrats' handmaiden -- old line media -- aids and abets the democrats in Bush Bashing no matter what history or fact have to be ignored.

So why would you be critical of the Administration's inability to "secure bipartisan support" for this program or any other program that has thwarted terrorists and saved American lives?

Disclosure should be top down
Honesty and public security is incompatable with secrecy but the disclosures should start top down. Begin with Bush and Congress posting all comunications and finances. Then the Cabinet and down thru the govt heads. Post all IRS returns on the web starting with the top.

Sexual Privacy
"Nonetheless, just as sexual privacy in the bedroom doesn't extend to acts of rape or sexual abuse of a spouse, neither can the privacy shield be allowed to protect mass murderers and their plots."

Imagine that the NSA was secretly scanning the sounds emmanating from every bedroom in America -- and then investigating all the person(s) involved whenever cerain red-flag phrases were uttered, such as 'No!,' 'Stop!,' 'Help!,' or 'Rape!'

Would the loss of privacy be worth the added protection?

A very good point - but I have to say that this administration has not been. . .
A very good point - but I have to say that this administration has not been very effective at consistently presenting it's message.

President Bush has often gone for the cheap sound bite while failing to call a spade a spade as he dances around the real issue which is that a significant minority and perhaps a majority of the Muslim population of the world is our enemy in this war.

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