The Right to Information

The debate of Anti-Terrorism Legislation has generally focused on the aspects which restricts the physical liberties of citizens (i.e. indefinite detention) or the weakening of procedural justice (i.e. delay in the right to meet an advocate). While those aspects are worrisome, the popular media tends to downplay the significance of the shift in the government’s claim for access to information; and its related view on the appropriate level of privacy for its citizens. This post will first examine the evolution of the popular understanding of privacy (with particular focus on the impact of technological advancement), the impact of the ‘War on Terror’ and anti-terrorism program (which includes all governmental initiatives) on a liberal democratic governments’ understanding of privacy, and compare the difference between authoritarian and democratic regimes in relations to the anti-terrorism program.

The focus of this post is on the government’s conception of privacy, in particular, its relationship to personal relations. Thomas Riley’s article “Security vs. Privacy: A Comparative Analysis of Canada, the United Kingdom and the United States” demonstrates that significant changes has occurred in this relationship due to the Anti-Terrorism program. Riley argues that there has been significant shift in the respective government’s perspective towards security at the expense of privacy. In an extensive catalogue of legislative programs, surveillance improvements, and programs, Riley demonstrates the impact of the anti-terrorism program on the citizens’ privacy. The article’s main weakness is that it fails to acknowledge the shift in the general understanding of privacy prior to the anti-terrorism program.

Riley's analysis of privacy and security portrays privacy as the dependent variable of security. While Riley acknowledges that September 11th drove up the demand for surveillance (and analysis) technology (Riley 2007, 3), he undervalues pre-September 11th technological advances and its effect on the understanding of privacy. Prior to September 11th, 2001, the development of the Internet, and other communications advancements, has shifted the cost-benefit calculations of citizens (especially those in developed economies). By the late 90's, it was general knowledge that the ability to track a person's browsing history by internet service providers (ISPs) existed (Oakes 2000).

The benefit offered by the Internet, however, offsets the cost of possible discovery of one's browsing history (as seen by the exponential growth in internet usage). The ability to maintain massive databases and efficient search capabilities made the possibility of data-sharing possible. The development of the ability to track one's browsing history shifted the understanding of privacy from banning the government actively seeking information (since collection of such data was done by businesses) to providing the proper checks and balances for government to accessing the documents collected by the companies.

This shift, from preventing the creation of a database of personal information to regulating its access by government official, is a dynamic that occurred before the September 11th and is important to the context of the current debate. Riley’s conception of a continuum, where security and privacy represent the two poles fails to capture the dynamic within the understanding of privacy. The debate over the limits of employing data-mining technique as opposed to the creation of data-mining capabilities is representative of this change. The latter debate was circumvented by the technological advances made prior to the anti-terrorism program.

The impact of technology does not overshadow the impact of the shock of terrorism on the debate, in the short run. There is no doubt that the events of September 11th have had a huge impact on the debate between security and privacy, but the changes in technological advances paved the way for the current debate. It is because of the changing understanding of privacy, triggered by technological advance, that the internal shift in the government’s understanding of its relation to information is obscured.

Prior to the anti-terrorism legislation, the government only had the ability to access personal information with appropriate, and adequate, reason. Generally speaking, there is a judicial evaluation of the reason and the bar set for access is relatively strenuous. The anti-terrorism legislation changes that by providing a general reason, the prevention of terrorist acts that authorizes the government to access a wide range of information; furthermore, the legislation generally moves the judicial component from gate-keeper to ex post facto overseer. The legislation removes the burden on the government to provide specific rational to access relevant information. The government’s specific burden has been replaced by a general rationale, combating terrorism, to justify access to wide range of information.

This shift from the government being required to have specific evidence against specific target for access to information to being required to have neither specific evidence nor targets to access information has clearly manifested in some of the anti-terrorist programs proposed by the US. The proposed Terrorism and Information Planning System (TIPS) is a prime example of the new understanding. TIPS was a program which proposed to recruit citizens would have access to other people’s property (i.e. mailman, cable maintenance workers) to report suspicious activity. The shift from specific to general also occurred in the informant recruitment process. Whereas before the anti-terrorism program specific informants were sought out for specific targets, TIPS proposed a general recruitment (up to 10 million informants in the pilot project alone). Its fundamental premise is that the general reason of preventing terrorism was adequate to infringe on the right of individuals to privacy.

The shift is alarming for liberal democracies because the difference in the government’s right to individual’s information is a distinguishing trait between liberal democracies and authoritarian regimes. The shift from specific to general is symptomatic of a general shift towards authoritarian tendencies. Authoritarian regimes lays claim to all information, and results in a lack of respect for the privacy of the people. The anti-terrorism legislation shifts liberal democratic governments into this area. This is especially apparent when one considers the length of time it takes for authoritarian regimes to establish (per UN Security Council regulations) anti-terrorist legislation.

Whitaker, in “Exporting the Patriot Act? Democracy and the War on Terror in the Third World”, notes that authoritarian regimes have a significantly easier time implementing anti-terrorist legislation than democratic regimes (Whitaker 2007). This is because there is very little substantive change by implementing the Anti-Terrorist Legislation within authoritarian regimes. The ease experienced by authoritarian regimes in adopting anti-terrorism legislation, aside from the lack of procedural justice, is because the legislation does not run counter to the government’s understanding of its relationship to information. Authoritarian regimes, without fail, lay claim on a general right to information (which the Anti-Terrorism Legislation legitimizes). This is in contrast to a more difficult process in adopting anti-terrorism measures is within liberal democracies because the Anti-Terrorism Legislation creates the general right, instead of reinforcing it.

The shift in a liberal democratic government’s right to information, coupled with technological advances; represent the most troubling aspect of the anti-terrorist legislation. This is because of the great difficulty in shifting from a general claim to information back to a system of specific claims. This is in contrast to the relatively ease to reverse the provisions that limit personal freedom and procedural fairness, where a legislative initiative is enough to reverse the provisions. It is a significantly different story when it comes to data-bases and data-mining technologies. The creation of the databases by corporations and governments are difficult to destroy because of the tendency of government to keep records. The creation of data-mining processes, as a respond to the anti-terrorism program, is impossible to destroy altogether; due to the fact that they are mostly owned by private corporations.

While the passionate feeling within government, the lead to the passage of the Anti-Terrorism Legislation, may mellow with the passage of time; the creation of data compilation, mining, and analysis technologies means that at the next time there is a shock to the system, the process for invasion into the privacy of citizens could advance at a much quicker pace. The ability to rapidly deploy such technology will most likely result in significant additional pressure for policy makers to ‘rally around the flag’ and limit the time available for meaningful debate.

In conclusion, the anti-terrorism program has had a permanent impact on the ability of government to access personal information. This change, along with the shock of September 11th, shifted governments claim to information. This shift, from a specific to a general claim to information, is articulated in the state’s anti-terrorist program. The technological shift, both before the shock and after, had had significant impact on the debate and future action. The shift in the governments understanding of its relationship to personal information should be a dominant concern for all citizens within a liberal democratic state.

Works Cited List
Oakes, C. (2000) "Privacy Protocol Lauded, Sort Of" Wired, 28 Feb 2008 accessible at: http://www.wired.com/politics/law/news/2000/06/37145

Riley, T (2007). "Security vs. Privacy: A Comparative Analysis of Canada, the United Kingdom and the United States" Journal of Business and Public Policy (Vol 1(2))

Whitaker, B.E. (2007). "Exporting the Patriot Act: democracy and the 'war on terror' in the Third World" Third World Quarterly, 28:5, 1017 - 1032