National Security Measures Should Be Debated on New Terms, Chandler Says

Advocates for national security over privacy should consider the inherent security risks of surveillance and other security measures, said Jennifer Chandler, luncheon speaker at the Virginia Journal of Law and Technology symposium, "Modern Topics in Information Privacy" Feb. 8 at the Law School.

Jennifer Chandler

"The best way to try to resist the inevitable bias in favor of security is to reframe the debate," said Chandler, an assistant professor at the University of Ottawa. "No longer are we trading liberty, privacy — some value of that type against security, but we look at the counterterrorism or national security measure and we identify ways that it in fact reduces security, as well as reducing liberty or privacy, so that we convert the debate or trade-off into one form of security gain or loss against another."

Chandler suggested that security typically trumps the value of privacy for a number of reasons; you can't have too much security — but not many people want to be so private that they are hermits. "We have a less vivid imagination of what it means to have reduced privacy," she said, while scenarios of national security crises are now easy to imagine.

The judiciary also has hesitated to reign in measures to boost security installed after Sept. 11. "Judges don't want to say anything about a national security measure," she said. "If you strike it down, and there's an attack, it's your fault."

Ensuring security may seem to help one population — such as those at risk of a terror attack — at the expense of another, but could end up harming everyone. If Arab-Americans are discriminated against or adversely affected by stringent security measures, they may become more hostile to other Americans and thus more inclined to pose security risks, Chandler explained as an example. "You then lose them as a segment of society that might be very helpful" in preventing attacks.

Chandler said there are costs to the security "theater" — useless security measures that can promote fear, such as the terrorism color code instigated by the U.S. Department of Homeland Security. After Sept. 11 a reduction in air travel meant an increase in road traffic fatalities — an additional 1,600 people died in the year after the terrorist attacks. "The avoidance behavior and the fear, has consequences not just economically but also in terms of lives," Chandler said.

Similarly, government surveillance efforts have hidden costs. Because governments want the ability to wiretap phones through a "back door" in phone software, it opened the door for criminals to do the same in Greece, where top government officials' phones were tapped in 2004.

"The problem of back doors is a problem with software generally," she said. "There's also multiple reports of government pressure on private makers of software products, whether security software or encryption software, to give government a back-door access."

The U.S. government's Total Information Awareness System (later renamed the Terrorism Information Awareness System), designed to link government and private databases to track financial, educational, travel, housing, communications and health information of people in America, similarly poses problems and the potential for false positives."Data, freed from its original context, can be extremely dangerous," Chandler said.

She pointed to the Maher Arar affair, in which a Canadian engineer, Arar, was seen talking to a suspected terrorist late in 2001. Canada placed a terrorism-related border lookout on Arar. In 2002 the Royal Canadian Mounted Police passed on inaccurate and incomplete information about Arar to U.S. authorities. Later that year, when Arar had a layover at a U.S. airport, he was arrested. U.S. authorities sent him to Syria, where he was interrogated and tortured. He was eventually returned to Canada in 2003.

"It suggests the kind of risks we can get into with these large data-veillance projects where information is being drawn from everywhere, which may start to produce a false impression which can have very serious consequences."

"We have a bias toward security," said Chandler. "In a time of concern over security, it might be useful to rebalance the discussion by focusing on the way that security measures may harm security as well."