After recent expansion in worldwide terrorism and more specifically in terrorism that has impacted the United States, the need to intercept harmful or terrorist related Internet communications has become more prevalent. Ideally, the government would only be able to intercept terrorist related communications and all other types of Internet communications would be strictly off limits to the federal government. However, the ability to distinguish perfectly between terrorist related communications and other forms of Internet communications is hazy at best, impossible at worst. Therefore, we are forced to draw a line and give up a certain degree of our rights to freedom of speech, privacy, etc… in a trade off for more protection against terrorist sources throughout the world. Very few people would argue that we do not need protection from terrorists, however many contrasting viewpoints argue against any form of eavesdropping that would infringe upon any of our basic rights and freedoms in this country. Furthermore, what one person is willing to sacrifice in terms or his or her own privacy is not the same as another person is willing to sacrifice in terms of his or her own privacy. How do we achieve this goal of preventing terrorism without invading others and without compromising the basic rights and freedoms that are the foundation of this nation?
To begin looking at this issue, we must first explore the foundation of law within the United States. Specifically we must examine the “Clear and Present Danger Doctrine.” This doctrine has long been the foundation for search and seizures within this country. Many times throughout history, this doctrine was used to prosecute individuals involved in anti-war protests and other demonstrations. However a dissenting opinion in a 1919 Supreme Court case changed how freedom of speech would be viewed in this nation. “In Abrams v United States we see the beginnings of a movement to a more speech-protective test. Although the Court majority votes to uphold the convictions of Jacob Abrams and other anarchists who distributed leaflets attacking the U. S.’s decision to send troops to Europe Justices Holmes and Brandeis publish a powerful dissenting opinion. Holmes argued that the “silly leaflet” of “poor and puny anonymities” posed no real danger to U. S. efforts, and thus failed to present a “clear and present danger” that the government might be justified in trying to suppress.” http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.html
From this opinion published by Justices Holmes and Brandeis, the federal and Supreme Court cases in years to come closely examined the clear and present danger aspect of cases. Furthermore, cases examined whether words spoken or written were triggers to action or simply key to persuasion. Under the United States Constitution, the keys to persuasion were allowed, while immediate triggers of action present a clear and present danger and were not allowed.
To put this history into the context of the Internet, we must realize that we are working in a completely new, completely different medium for speech and communication. In the Internet age, we encounter new acts passed by the United States government and new systems put in place by the United States government to monitor our actions on the Internet. It is not what the government is doing with these new systems that cause the problem, it is what the systems are capable of doing that cause the problem. Furthermore, there is no immediate sign that these new programs were needed to combat terrorism. In response to the United States Patriot Act, the Electronic Frontier Foundation presented these findings, “The civil liberties of ordinary Americans have taken a tremendous blow with this law, especially the right to privacy in our online communications and activities. Yet there is no evidence that our previous civil liberties posed a barrier to the effective tracking or prosecution of terrorists. To the contrary, they are amplified by the inclusion of so many provisions that, instead of aimed at terrorism, are aimed at nonviolent, domestic computer crime. In addition, although many of the provisions facially appear aimed at terrorism, the Government made no showing that the reasons they failed to detect the planning of the recent attacks or any other terrorist attacks were the civil liberties compromised with the passage of USAPA.” http://www.eff.org/Privacy/Surveillance/Terrorism_militias/20011031_eff_usa_patriot_analysis.html
The focus of the Patriot Act was to defend this country from terrorism, however, provisions within the Act allowed the government to track individual searches, gain personal information from ISP’s, and use roving wiretaps throughout the Internet to hunt down individual. This act puts everyday Internet users, those who use it for normal purposes, at risk of being spied upon. They may be spied upon due to a certain activity done online, recent contact with an individual that the government is tracking, or even by accident. Clearly the Patriot Act does not focus solely on terrorists or those who present a clear and present danger.
Finally, the government’s new program Carnivore, which was quickly renamed to something a little less negative, must be examined to see what the government is truly capable of doing online. The Electronic Frontier Foundation reports these findings on Carnivore, “Systems like Carnivore have the potential to turn into mass surveillance systems that will harm our free and open society. Currently, there is little if any public oversight over the FBI’s use of its Carnivore system. The FBI has not allowed the ISP to inspect the device, nor have any of the advocacy groups been allowed to examine it. In fact, the ACLU has had to resort to filing a FOIA request to try to get at the source code. Allowing the FBI to install and use a device such as this unchecked by any public oversight, threatens the openness we enjoy and expect in our society.” http://www.eff.org/Privacy/Surveillance/Carnivore/20000728_eff_house_carnivore.html
Where do Internet users stand? First, we must realize that the federal government has the power and authority to watch over seemingly everything that we do on the Internet. Secondly, we must realize that they are doing this, or could be doing this without our knowledge. They need not inform us when they collect information about us, what information they collect about us, or even why they are collecting information about us. This clearly is not the way the United States should or is supposed to be led. Freedom is perhaps our greatest virtue in this nation, but clearly not our greatest virtue on the Internet. The line must be drawn. The government should have the ability to tap into information, e-mail, etc… of those known terrorists and those with associations to terrorists. However, when this reach expands beyond those know or are associated with terrorists to include an outsider who may have had accidental contact, or contact that they did not initiate or want, the government has no right to inspect that individual or any individual further disconnected from the terrorists. If in searching for information on a terrorists or tracking him or her, the government comes upon a communication to someone that is not a known or suspected terrorist, their rights and powers to search end there. They must not have the right, or more importantly the ability to search beyond there. In order to assure a free, open Internet world we must be able to assume that we aren’t being watched, that we are able to explore our ideas, and to speak as we choose. We must feel that we are doing this in relative privacy, or freedom of speech and expression will suffer greatly. Perhaps this is the most essential aspect of the future of the Internet.