Mr. Alan Raul recently authored Privacy and the Digital State – which examines the balance between open government and privacy of personal information. In an interview with GlobalPOV, Mr. Raul explains whose responsibility it is to maintain the balance between security and privacy, and also shares his opinion that so-called ‘privacy advocates’ are doing more harm than good in terms of stimulating healthy debate.

GlobalPOV: Where do you see the progression of the government’s use of information – via technology?
AR: The use of personal information has several different analytic components. One of them is the government’s use of personal information for law enforcement, foreign intelligence, counter-intelligence and physical security uses. The other is the use of personal information for more mundane commercial transactions. With regard to law enforcement and counter terrorism activities, the technology that the government can deploy allows staggering potential access to all forms of electronic communication. Of course, the government needs to have significant access, and most Americans want the government to have access in order to protect the country from criminal and terrorist threats.

So who holds it in check? You’ve got the responsibility of government officials to adhere to the Constitution and existing laws, and you’ve got the criminal justice adversarial system that holds that in check. It’s fair to say that the technologies that are available to the government are impressive in their ability to intrude upon personal communications, but a significant amount of that intrusion is necessary to provide the protection and general welfare that Americans expect.

GlobalPOV: Do you think it’s possible that once they’ve got this infrastructure – which can disseminate tons of information very quickly – they might eventually decide to use it for different purposes (other than Homeland Security)?
AR: It’s possible, but it’s not very likely, in my opinion. The basic character of United States democracy is not going to change as the result of the concerns we have about terrorism and the uses to which technology can be put. Basically, the country is leery to the government’s use of information. And while we want to be protected from real threats—threats to our physical safety and livelihoods—that doesn’t mean that vigilance against government excesses is going to die down. There is a fairly strong Libertarian streak in the country that’s unlikely to abate outside of the terrorism context.

GlobalPOV: Tell us a little bit about the nature of privacy in the Digital Age. First, do people have a uniform idea of what privacy is?
AR: I don’t think so – and I think that the privacy debate has been skewed unhelpfully by some so-called ‘privacy advocates.’ The principal debate about privacy has centered around whether legitimate businesses—such as banks, financial institutions and healthcare organizations—can use information about customers that they acquire voluntarily and legitimately and share it amongst different business units and affiliates in order to market new products and services to their customers. There are privacy advocates at the state and federal level who believe individuals are giving up too much personal privacy when businesses can use account or transaction information to market back to them. But there is nothing inherently suspect or improper about that type of activity, and it’s gone on long before email and the Digital Age. Businesses try to tailor offerings that the public might be interested in and want to take advantage of. And the data suggests that people do take advantage of targeted marketing opportunities that try to predict what they might be interested based on other products and services that they’ve been interested in the past. The privacy advocates don’t reasonably and properly take account of the advantages and conveniences that the public derives from the ability of legitimate businesses to use personal information to customize our daily experiences.

Privacy advocates do a disservice to real privacy concerns by shifting so much of the debate into the marketing arena – as opposed to focusing on privacy crimes where criminals, not legitimate businesses, try to acquire identities, financial account information and other information that they use for fraudulent purposes. That is the real privacy risk that the country faces. But the remedy for that problem isn’t so much restricting legitimate businesses’ ability to use customer information – it’s to enhance security measures that businesses and customers use. Security and privacy begins at home. If the privacy and confidentiality of your financial and health information is important to you, you have to treat it with discretion – you can’t provide it willy-nilly to people you don’t trust. And by the same token—people that you do trust, like the phone company—they have an obligation to impose security measures to ensure that they don’t treat your information cavalierly, that they are not careless about who can access that data.

I believe that there is a lack of understanding about the definition of privacy. People have been steered into over-emphasizing restrictions on the marketing use of data, rather than being steered towards exercising discretion with their own divulging of financial and confidential information to third parties. And there’s been an under emphasis—until recently—on the security aspects of privacy. You can’t have privacy without good security measures. There needs to be training and education of employees in companies that work with electronic data. The inherent difference between electronic data and non-electronic data is just the ease of transmission and duplication. That’s what makes the Digital Age and the new technologies potentially vulnerable – anything that happens can happen on an enormous scale and very quickly. In the analog era, if one file was lost or stolen – the damage was limited. Today, the chances are if careless access is allowed, it’s probably not just one file – it could be hundreds of thousands of accounts where the information can be efficiently acquired by potential wrongdoers.

GlobalPOV: Do you think that going forward, Americans will demand more disclosure by the government regarding use of personal information?
AR: I would put that under the rubric of transparency. How transparent should the government’s acquisition of data about people be? That is the $64 billion dollar question. You can’t have democratic accountability of the government’s acquisition and use of personal information if the public doesn’t have any idea what the government is doing. On the other hand—to the greater degree that the government explains what its sources and methods and systems include, the easier it is for our country’s enemies to have access to that same information and to defeat the measures that the government is employing to protect us all. We don’t want that either. It’s a sliding scale of what’s appropriate.

Some disclosures to the Congressional oversight committees, done in confidence without further disclosure to the public … I think that’s a useful surrogate for full public access to that information. So Congress essentially acts as the watchdog for the public at large. There is a court—the Foreign Intelligence Surveillance Act Court—which is currently engaged in an unprecedented disagreement with the Justice Department in terms of sharing of information between the counter terrorism/foreign intelligence branches with the criminal law enforcement branches of the FBI. But that FISA court provides another check and balance on the executive branch’s proper use of information.

Congress did intend to shift the balance in favor of more sharing of information between the intelligence and law enforcement communities. Our legislators recognize the Constitution puts a premium on the nation’s safety, security, and general welfare– these are among the highest objectives for which the Constitution was adopted. If the government can’t assure safety and security for Americans, then the right to privacy doesn’t mean as much. Safety and security has got to come first, provided that there are checks and balances, accountability and transparency. But anybody who suggests that the government ought to be revealing all or most of its sources and methods and uses of information in the war against terrorism is missing the big point. We really are at war with terrorism, and war requires that we go into a different footing to win it. As long as there remain adequate and reasonable checks and balances and accountability – the nature of American society is not going to be changed, and the fundamental Constitutional rights of Americans are not going to be threatened. But Americans want to wage the war against terrorism effectively … we need to win it.

GlobalPOV: What other time—historically—did a pressing national security need create a compromise to civil liberties?
AR: The classic example is the internment of Japanese Americans in California during World War II. It’s not an episode which the country is particularly proud of today – and the debate over whether that was justifiable or whether the Supreme Court was right in upholding it, goes on to this very day. The country and the Congress felt that there was a genuine military risk to our national security on the Pacific Coast during World War II regarding Japanese American citizens. It’s difficult, in retrospect, to assess all of the strategic issues there, but if you’re asking for a historical example of when the country acted inconsistently with our Constitution ideals and principles in order to emphasize the perceived needs of national security, that would certainly be an instance.

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