[I've enclosed further comments urging careful deliberation on the provisions of the proposed anti-terrorist legislation that threaten civil liberties. First, though, a comment. If you look at the controversial provisions, one central theme recurs, what I call the "argument from paperwork": "As investigators, our hands are tied. If we want to get a wiretap (or get a suspect's tax records, or ...), then we have to go to a judge, make a case, and go through a lot of paperwork. This diverts investigators' effort, and it delays investigations into matters that may well be urgent. These bills simply suspend these arbitrary paperwork requirements in terrorism investigations. The result will be efficient information-gathering and information-sharing, and ultimately fewer attacks on our civilization." Notice that this is an argument about technology: it says that the information and communication technologies that connect investigators and judges are excessively cumbersome. The correct response, it seems to me, is to get better technology. Instead of throwing out the due process that lies at the absolute foundation of a free society under the rule of law, we should evaluate look at how those cumbersome due process procedures can be reengineered. Maybe we give wireless PDA's to investigators engaged in terrorism investigations, and sit judges down in front of computer terminals in three shifts 24/7. Let the investigators make their due process filings electronically, and let the judges respond as soon as they are satisfied. That way the necessary warrants are properly justified, records are kept, and investigators who cut corners can be held accountable. The necessary technologies exist today, and would not require multi-year development efforts. For those who are watching the agitation for automatic face recognition technologies in public places, here are some new paragraphs that I have added to my paper "Your Face Is Not a Bar Code: Arguments Against Automatic Face Recognition in Public Places" in response to some recent correspondence on the subject. http://dlis.gseis.ucla.edu/people/pagre/bar-code.html Responses to arguments in favor of automatic face recognition in public places * "The civilized world has been attacked by terrorists. We have to defend ourselves. It's wartime, and we have to give up some civil liberties in order to secure ourselves against the danger." We must certainly improve our security in many areas. I have said that myself for years. The fallacy here is in the automatic association between security and restrictions on civil liberties. Security can be improved in many ways, for example by rationalizing identification systems for airport employees or training flight attendants in martial arts, without having any effect on civil liberties. Security can be improved in other ways, for example by preventing identity theft or replacing Microsoft products with well-engineered software, that greatly improve privacy. And many proposals for improved security, such as searching passengers' luggage properly, have a minimal effect on privacy relative to existing practices. The "trade-off" between security and civil liberties, therefore, is highly over-rated, and I am quite surprised by the speed with which many defenders of freedom have given up any effort to defend the core value of our society as a result of the terrorist attack. Once we transcend automatic associations, we can think clearly about the choices that face us. Our goal should be to redesign our security arrangements in a way that provides both of the conditions of a free society: security and civil liberties. Among the many security measures we might choose, it seems doubtful a priori that we would choose the ones that, like automatic face recognition in public places, carry astronomical dangers for privacy. At least any argument for such technologies requires a high standard of proof. * "But the case for face recognition is straightforward. They were looking for two of the terrorists and had photographs of them. Face recognition systems in airports would have caught them." I'm not sure we really know that the authorities had photographs that were good enough for face recognition, even for those small number of suspects that they claim to have placed on a terrorist watch list. But for the sake of argument, let us grant the premise. The fact is that security procedures at the Boston airport and elsewhere were so shoddy, on so many fronts, that a wide variety of improvements would have prevented the hijackings. If you read the white paper about the hijackings from the leading face-recognition company, Visionics, it becomes clear that face recognition is really being suggested to plug holes in identification systems. If you believe that it can never suffice to screen people from flights based on the identity cards they present at check-in, then it starts making sense to screen people by photographs of their faces. The hidden premise is that we will not fix our identity systems. If this premise is false, however, then something is badly wrong. Those systems are severely broken, and if these attacks do not motivate us to fix them then we are lost. Put another way, the role that face recognition actually plays in the context of other security measures is quite marginal. That said, from a civil liberties perspective we ought to distinguish among different applications of face recognition. Those applications can be arranged along a spectrum. At one end of the spectrum are applications in public places, for example scanning crowds in shops or on city streets. These are the applications that I propose banning. At the other end of the spectrum are applications that are strongly bounded by legal due process, for example in match a mug shot of an arrested person to a database of mug shots of people who have been arrested in the past. When we consider any applications of automatic face recognition, we ought to weigh the dangers to civil liberties against the benefits. In the case of airport security, different applications fall at different points along the spectrum. Applications that scan crowds in an airport terminal lie toward the "public" end of the spectrum; applications that check the validity of a boarding passenger's photo-ID card by comparing it with the photo that is associated with that card in a database lies toward the "due process" end of the spectrum. The dangers of face scanning in public places (e.g., the tracking of potentially unbounded categories of individuals) may not apply to applications at the "due process" end of the scale. It is important, therefore, to evaluate proposed systems in their specifics, and not in terms of abstract slogans about the need for security. Here, as well, is a top-ten guide to URL's about face recognition. I've tried to collect a representative sample from various sources. All are recommended reading, but I don't endorse all their contents. Facial ID Systems Raising Concerns About Privacy http://washingtonpost.com/wp-dyn/articles/A12629-2001Jul31.html Click. BEEP! Face Captured http://www.sptimes.com/News/071901/Floridian/Click_BEEP_Face_captu.shtml Super Bowl Surveillance: Facing Up to Biometrics http://www.rand.org/publications/IP/IP209/IP209.pdf the two dominant face recognition companies http://www.visionics.com/faceit/ http://www.viisage.com/ Protecting Civilization from the Faces of Terror http://www.visionics.com/newsroom/downloads/whitepapers/counterterrorism.pdf Facing the Truth: A New Tool to Analyze Our Expressions http://www.hhmi.org/bulletin/may2001/faces/ directory of face recognition research http://www.cs.rug.nl/~peterkr/FACE/face.html Electronic Privacy Information Center Face Recognition Page http://www.epic.org/privacy/facerecognition/ more responses to bad arguments against privacy http://dlis.gseis.ucla.edu/people/pagre/arguments.html It will help to know that the leading company, Visionics, has received millions of dollars in development funding from the US government. Their white paper ("Faces of Terror") argues the case for automatic face recognition in airports. Not all of the arguments are bad -- some of the proposed applications (e.g., preventing the same person from getting multiple identification cards) are relatively benign in privacy terms, though they also raise questions of cost-effectiveness that are beyond the scope of my analysis. What's most striking about the white paper is the wildly generalized surveillance architecture that they develop in the later sections of the paper. Oh, and if you're looking for the section where they explain why the system can never be applied to the whole population, you're not going to find it. You will, however, be interested to read Visionics' privacy policy: http://www.visionics.com/newsroom/biometrics/privacy.html It's vacuous. It says that there should be "procedures", but says effectively nothing about what those procedures should be.] =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= This message was forwarded through the Red Rock Eater News Service (RRE). You are welcome to send the message along to others but please do not use the "redirect" option. For information about RRE, including instructions for (un)subscribing, see http://dlis.gseis.ucla.edu/people/pagre/rre.html =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Date: Fri, 28 Sep 2001 12:00:59 -0400 From: EPIC News <alertat_private> (by way of Marc Rotenberg) To: EPIC Advisory Board: ; Subject: EPIC Alert 8.18 [EPIC Advisory Board] ============================================================== @@@@ @@@@ @@@ @@@@ @ @ @@@@ @@@@ @@@@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @@@ @ @ @@@@@ @ @@@ @@@ @ @ @ @ @ @ @ @ @ @ @ @ @@@@ @ @@@ @@@@ @ @ @@@@ @@@@ @ @ @ ============================================================== Volume 8.18 September 24, 2001 -------------------------------------------------------------- Published by the Electronic Privacy Information Center (EPIC) Washington, D.C. http://www.epic.org/alert/EPIC_Alert_8.18.html ======================================================================= Special EPIC Alert ======================================================================= In the days following September 11, Congress moved quickly to show support for the President and granted him certain authority to pursue military matters on behalf of the country. Congress then worked to provide financial support for rebuilding after the tragedy. Then Congress acted to improve airline safety, ensure aid to the airline industry, and begin to restore American confidence in air travel. Now it may be appropriate for Congress to take a breath before it tackles the subjects contained in the various bills that will be circulating on Capitol Hill this week. Unlike the earlier measures that responded to the immediate crisis, the topics under consideration this week -- immigration policy, criminal law, electronic surveillance, and intelligence gathering -- sweep broadly into other areas and run the risk, particularly at this point in time, of chipping away rights that safeguard all Americans In the area of electronic surveillance, Congress should proceed particularly carefully. There are now a mix of provisions that, if taken together, would allow more people in government to monitor more electronic communications of Americans for more reasons under a lower legal standard than is currently permitted under law. And this new statutory authority would be broadly exercised in cases completely unrelated to terrorism. So, for example, the police could now use "Carnivore" to routinely capture clickstream data from Internet users -- including the web sites visited and the pages downloaded -- under the same low standards that currently permit government access to telephone numbers dialed. Another provision would significantly expand the use of electronic surveillance for computer crime investigations. Still another makes it easier to seize voicemail. It may be appropriate for Congress to act on a few matters quickly -- improving border security and ensuring adequate resources for translation and interpretation -- but the vast majority of legislative recommendations now being faxed around Washington create sweeping surveillance authority without justification. The adoption now of any new law enforcement powers unrelated to the investigation and prevention of terrorist acts should be opposed. Marc Rotenberg Electronic Privacy Information Center ----------------------------------------------------------------------- "But, in a time of widespread anxiety, it is harder to fend off the siren song of fear sung by those who would have us trade in a little liberty for a little more safety. There is no such thing as a little liberty. Before you know it, you don't have any, and America is no longer the shining beacon of equality and freedom that terrorists loathe." --Atlanta Journal and Constitution, September 16, 2001 http://www.accessatlanta.com/ajc/epaper/editions/sunday/opinion_b34a146ad10661f10008.html "Last week's terrorist attacks caught the United States painfully unprepared. Whether the carnage was preventable or not, this tragedy -- and the glaring intelligence failures that let it happen -- must not be used as a pretext for measures that endanger the fundamental freedoms that are our birthright. Yes, tough and pragmatic laws are needed to prevent terrorism and espionage. And that should include keeping closer tabs on visitors to our country. But terrorism will have won if those laws unnecessarily fetter the fundamental civil liberties that have distinguished the United States from the rest of the world." --Baltimore Sun, September 19, 2001 http://www.baltimoresun.com/ "There is general acknowledgement that society's delicate balance between freedom and security will tip toward greater security at the expense of individual liberties. But the exact spot along that continuum where Americans will tolerate restrictions on their freedoms -- and where they will resist -- has not yet been located. Vigilance will be needed to make sure that the precious freedoms central to the American idea are not eroded by equally necessary new safety precautions." --Boston Globe, September 20, 2001 http://www.boston.com/globe/ "The true measure of the effectiveness of this attack by a shadowy, hate-filled enemy will lie in how we reassess ourselves and our place in the world, and how we redefine, as inevitably we will, the balance between individual liberty and collective, national security. If we lose our liberties in the name of safety, the terrorists will have won. That cannot, must not, happen." --The Buffalo News, September 16, 2001 http://www.buffalonews.com/editorial/20010916/1028304.asp "[C]ivil libertarians have good reason to be wary of proposals to expand the government's power to go after suspected terrorists. In wartime, some people consider basic rights a luxury we can do without. . . . At times like this, any ideas to help law enforcement against terrorists deserve consideration--and careful inspection to ensure that they will hamper our enemies more than they will hurt our liberties." --Chicago Tribune, September 20, 2001 http://www.chicagotribune.com/news/opinion/chi-0109200048sep20.story?coll=chi%2Dnewsopinion%2Dhed "[T]he terror attack unleashed on America must not become an excuse for suspending basic American principles and values. . . . Special care should be taken to ensure that ethnic profiling of people of Arab or South Asian background is used judiciously and sparingly by law-enforcement officials. The hunt for suspected terrorists or terrorist sympathizers can't justify a descent into unjust police methods. Wars sometimes occasion a lapse in democratic processes, and the situation following the Sept. 11 attacks is being characterized as 'war.' This must not mean a lapse in basic civil liberties, or in the civility with which all people are treated in the US." --Christian Science Monitor, September 18, 2001 http://www.csmonitor.com/2001/0918/p8s1-comv.html "Although more value does need to be placed on low-tech human intelligence gathering, other tools of eavesdropping need to be used while balancing the civil liberties of Americans. Proposals to grant intelligence agencies more latitude need to be revisited and debated." --Dallas Morning News, September 17, 2001 http://www.dallasnews.com/ "[A] frightful picture is emerging. It seems that American leadership has resolved the tension between security and freedom by giving security the priority. Without a debate over how far we can jeopardize our freedom in pursuit of security, we seem to be inclined toward doing whatever it takes to feel safer. . . . Imagine being stopped by a police officer for speeding and when he asks you for your ID, you reveal not only your name and address but also your religion, your ethnic and national origin, your financial record, and police or immigration record if any. This is not only a form of profiling but also an invitation for discrimination. The smart cards, if implemented, would be the end of privacy. . . . We must act now. I invite all who are concerned about our freedoms and the quality of our civil society to let Washington know our concerns now." --Detroit Free Press, September 18, 2001 http://www.freep.com/voices/columnists/ekhan18_20010918.htm "Historically, it has been at times of inflamed passions and national anger that our civil liberties proved to be at greatest risk, and the unpopular group of the moment was subject to prejudice and deprivation of liberty." --Detroit News, September 21, 2001 http://detnews.com/ "[W]e must uphold our values and protect our constitutional rights. While retaliating for last week's attacks and upgrading our intelligence and national security, we must be sure to maintain the important principles - of civil liberty, ethnic and religious tolerance, and freedom of expression - that are the foundation and strength of our nation. If we allow terrorists to alter our values or way of life, we hand them a victory." --Indianapolis Star, September 16, 2001 http://www.indystar.org/ "It is one thing to pass emergency legislation; quite another to make it a permanent part of our law. Any congressional enactment should come with a sunset provision, requiring the law to lapse after two years unless it is reenacted. During the interim, Congress should create a bipartisan commission to consider the fundamental questions at stake. Then, we can consider more permanent legislation after the initial panic has subsided. We have used similar devices in the past. . . . This time, our tradition of civil liberties is being placed at risk, and there are special reasons that make a sunset provision even more appropriate. The most obvious is the rush with which the legislation is being pushed through Congress. . . . The rise of terrorism undoubtedly requires a serious debate over the proper balance between liberty and security in the 21st century. But Congress should not provide permanent answers when we have not even begun to ask the right questions." --Los Angeles Times, September 20, 2001 http://www.latimes.com/news/opinion/la-092001ackerman.story "Do Americans really think well of the 'whatever-it-takes' battle cry? They shouldn't. There are all sorts of 'whatevers' this country could but shouldn't embrace to fight terrorism. It could unleash police to search apartment blocks where immigrants are known to live -- hoping to root out a terrorist needle in the haystack. It could scrap the rule that suspects be told of their rights to a lawyer and to remain silent -- hoping that hapless confessions of terror plots will follow. It could jail suspicious foreigners for weeks -- hoping that incriminating evidence might eventually show up. Many Americans recoil at the thought of such blunt tactics, even if they can't say why. They sense something un-American about combating terrorism by scrapping the rule of law. They see the folly of defending the land of the free by shrinking its freedoms. . . . Even if Congress subscribes to the 'whatever-it-takes' philosophy, it's not clear this [recently introduced] legislation should pass. The White House has made no case that existing law enabled last week's attack or hindered the ensuing investigation. Nor has it established that squelching civil liberties is a wise response to the threat of terror. In truth, forsaking American freedom is precisely the wrong answer to the fear terrorists sow. It gives them the victory they seek. It flouts an article of American faith: that just as some sacrifices must be made in safety's name, others must never be made." --Minneapolis Star Tribune, September 21, 2001 http://www.startribune.com/stories/1519/703260.html "[O]ur constitutional freedoms may be about to face their most serious test in several generations. We can't protect ourselves from suicide bombers by blindly surrendering our liberty. To do so would only ensure the victory of fanaticism." --The New Republic, September 24, 2001 http://www.thenewrepublic.com/ "There must be an exacting examination of how the country can face this threat without sacrificing its liberties. . . . Americans must rethink how to safeguard the country without bartering away the rights and privileges of the free society that we are defending. The temptation will be great in the days ahead to write draconian new laws that give law enforcement agencies - or even military forces - a right to undermine the civil liberties that shape the character of the United States. President Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans. That includes Americans of Islamic descent, who could now easily became the target for another period of American xenophobia and ethnic discrimination." --New York Times, September 12, 2001 http://www.nytimes.com/2001/09/12/opinion/12WED2.html "If the idea takes root that civil liberties should not be permitted to stand in the way of a war on terrorism, at what point do security measures start to corrode the very society they are designed to protect? . . . [it has been said that] Americans would accept neither identity cards, so reminiscent of the domestic passports that people associate with totalitarian states, nor the common European practice of closing a street at both ends and checking everyone there for immigration violations. Where does a democratic society draw the line?" --New York Times (Associated Press), September 16, 2001 http://www.nytimes.com/2001/09/16/weekinreview/16GREE.html?pagewanted=2 "Unshackling the nation's intelligence agencies will be a more complex task, not least because it will run into a dilemma: At what point will the government's powers of investigation and security expand so much that they begin to erode the civil rights defining a free society - giving terrorists a moral victory? The balance between security and freedom is delicate and hard to restore when collective fear tips it toward greater government control." --Newsday (New York, NY), September 18, 2001 http://www.newsday.com/ "[T]he United States Senate already has acted precipitately, passing legislation Thursday evening that enables the FBI to obtain warrants for electronic surveillance of e-mail and other computer communications more easily. That initiative, which may result in severe abrogations of individual rights, is probably the harbinger of a wave of new restrictions and invasions by government. . . . [B]efore we assent to any such infringements, we ought to consider how little has been done to ensure our safety without affronting the Constitution. . . . Nobody's freedom, for instance, would be harmed by sealing the pilot's cabin against intruders well before takeoff, or by installing signal devices that would instantly alert authorities to a crime in progress. . . . Our leaders never tire of telling us that America is the wealthiest, most technologically advanced nation in the history of the world, as well as the most free. Now is the time to tell them that we can afford to protect our people and our territory without undermining our freedom." --Salon.com, September 14, 2001 http://www.salon.com/news/col/cona/2001/09/14/rights/ "If we sacrifice our civil liberties the terrorists will have won. We must [act] in a way that preserves our civil liberties. It can be done." --San Diego Union-Tribune, September 16, 2001 http://www.uniontrib.com/ "In the heat of rightful, red-hot anger, this country may take actions it will later regret. Congress is weighing a terrorist surveillance package that clashes with personal liberty and encroaches on some of our fundamental rights. This country is eager to move fast and hard in response to the murderous attacks in New York and Washington. No question, payback is due for the deaths and destruction, and this newspaper supports a sustained and focused campaign to hunt down the culprits. Yet members of Congress must keep their heads in this moment of frustration and outrage. They need to ask tough questions about each proposed expansion of law-enforcement powers. They need to realize that the U.S. Constitution is worth defending too." --San Francisco Chronicle, September 19, 2001 http://www.sfchron.com/ "To ensure that America's freedom remains strong, Congress should set aside partisan bickering to help the president track down terrorists. . . . Likewise, members of the Senate and House need to keep Bush's words fresh in their minds when considering proposals to reduce security threats. The constitutional and privacy protections of law-abiding citizens ought not to be swept aside because of overly broad or hastily adopted new laws. The country may need new laws to help federal agents fight well-organized, tech-savvy terrorists. But in the heartbreak over these evil deeds, lawmakers must take time to discuss any actions limiting the freedoms that distinguish America." --San Jose Mercury News, September 16, 2001 http://www0.mercurycenter.com/premium/opinion/edit/082562.htm "'In a democracy, dissent is an act of faith. Like medicine, the test of its value is not in its taste, but its effects.'" I hope President Bush, his inner circle and the members of Congress keep hearing Fulbright's words echoing down the corridors now filled with policy-making under duress. There must be room for constructive questioning, even as those entrusted with grave decisions push quickly to meet the national emergencies in this chilling autumn of 2001. Witness, please, the rich potential to shape consensus without abrogating basic democratic rights as Congress and the administration work though the Bush administration's anti-terrorism proposals. . . . Concurrent with Ashcroft's proposals, key lawmakers have acknowledged that legislating in haste can be cause for irreparable damage to the very rights with which America defines itself. Unlike the sudden, transcendent disregard for budgets and the social programs that seemed essential two weeks ago, the regard is high for protecting both national security and the rights we enjoy as free people. . . . Just powers are derived from the consent of the governed, whether in time of war or peace." --St. Paul Pioneer Press, September 21, 2001 http://www.pioneerplanet.com/opinion/ocl_docs/139821.htm "If we are to win the war against terrorism, we will need to employ new weapons. Nevertheless, Congress must proceed very carefully as it considers Attorney General John Ashcroft's sweeping proposals. Moving too hastily or going too far could result in unwarranted curbs on constitutional liberties." --Sun-Sentinel (Fort Lauderdale, FL), September 21, 2001 http://www.sun-sentinel.com/ "Celebrating the openness of our society, and its ability to accommodate diversity without constantly coming to blows, is more important now than ever. This is what the terrorists who have been implicated in Tuesday's attacks do not understand about America, and this is why they have chosen to attack us." --The Times-Picayune (New Orleans), September 16, 2001 http://www.timespicayune.com/ "Essential questions confront us, such as the degree of liberties we will be willing to surrender in the name of security. The answers will not come quickly or in unanimity. These rough roads ahead should not be overlooked in the initial closing of ranks around President Bush. But this struggle is what separates democracy from the world of suicidal zealots." --USA Today, September 21, 2001 http://www.usatoday.com/news/e98/raasch/r110.htm "This is complex legislation that, as Mr. Ashcroft himself has noted, would affect civil liberties as well as law enforcement. The purpose should be not to rush and rubber-stamp but to get the balance right. That's particularly true of the proposals that would infringe on traditional liberties." --Washington Post, September 20, 2001 http://www.washingtonpost.com/ ======================================================================= Subscription Information ======================================================================= Subscribe/unsubscribe via Web interface: http://mailman.epic.org/cgi-bin/mailman/listinfo/epic_news/ Subscribe/unsubscribe via email: epic_news-requestat_private subject line: "subscribe" or "unsubscribe" Back issues are available at: http://www.epic.org/alert/ ======================================================================= Privacy Policy ======================================================================= The EPIC Alert mailing list is used only to mail the EPIC Alert and to send notices about EPIC activities. We do not sell, rent or share our mailing list. We also intend to challenge any subpoena or other legal process seeking access to our mailing list. We do not enhance (link to other databases) our mailing list or require your actual name. In the event you wish to subscribe or unsubscribe your email address from this list, please follow the above instructions under "subscription information". Please contact infoat_private if you have any other questions. ======================================================================= About EPIC ======================================================================= The Electronic Privacy Information Center is a public interest research center in Washington, DC. It was established in 1994 to focus public attention on emerging privacy issues such as the Clipper Chip, the Digital Telephony proposal, national ID cards, medical record privacy, and the collection and sale of personal information. EPIC publishes the EPIC Alert, pursues Freedom of Information Act litigation, and conducts policy research. For more information, e-mail infoat_private, http://www.epic.org or write EPIC, 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248 (fax). If you'd like to support the work of the Electronic Privacy Information Center, contributions are welcome and fully tax-deductible. Checks should be made out to "EPIC" and sent to 1718 Connecticut Ave., NW, Suite 200, Washington, DC 20009. Or you can contribute online at http://www.guidestar.org/aol/search/report/report.adp?ein=52-2225921 Your contributions will help support Freedom of Information Act and First Amendment litigation, strong and effective advocacy for the right of privacy and efforts to oppose government regulation of encryption and expanding wiretapping powers. Thank you for your support. ---------------------- END EPIC Alert 8.18 ----------------------- .
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