Security and Freedom in an Anxious Age, Part I

GUEST: Jeffrey Rosen
VTR: 12/10/2003

I’m Richard Heffner, your host on The Open Mind. And my guest today, a law professor and George Washington University and the Legal Affairs Editor of The New Republic is Jeffrey Rosen who has joined me here several times before to discuss his writings on what he considers the unhappy fate of privacy in America.

Today we focus on his new Random House book, “The Naked Crowd” which he subtitles “Reclaiming Security and Freedom In An Anxious Age.” Well, to be sure, my guest’s writings remind me ever so much of Daniel Webster’s historic toast in the midst of growing sectional conflict between North and South …his 1830 toast to that sentiment, as he called it, dear to every true American heart … liberty and union, now and forever, one and inseparable.

Well, Americans need no longer do battle to reconcile liberty and union, but in our own times, particularly since 9/11, it is liberty or freedom and security that are perceived by so many of us as at such odds, one with the other. And it is Jeffrey Rosen’s purpose to demonstrate that this need not be so, that we can reclaim security and freedom in our anxious age.

So let me ask my guest today just how we can do so. Big question. Big problem.

ROSEN: The first thing that we need to do is recognize the source of the challenge that we face. It is possible to strike a balance through security and freedom through both law and technology. And I’d love to talk with you together about what some of those laws and some of those technologies might look like.

But before we get into the specifics, we have to think through who is most likely to demand them? And my thesis is that the public won’t demand them, the courts won’t require them, and the technologists won’t build them on their own. So I end up being more optimistic about Congress, interestingly. But the great challenge that we face is how to conquer the irrationalism, the emotionalism and the fear in ourselves. This is a state ruled by public opinion. And the public is not always analytical or cool in its response to the fears that menace us. It responds to fears in emotional rather than coolly analytical terms. It’s distorted by the fascinating limitations of public psychology that make it difficult for us to coolly evaluate what the good balance might look like. So, we have a bunch of things to talk about.

First, let’s describe what a good example of the balance might look like and then we can ask ourselves how it’s likely to be adopted.

HEFFNER: Well, before you do, I’m fascinated by your expression in the book and just now that it will be, in your estimation, our legislators, our elected Congress persons who will more likely protect us than the Courts themselves. And of course, I’ve been trained by Tocqueville to believe that in a community where public opinion looms so large, where one fears the tyranny of the majority, one doesn’t turn to those who are just elected Legislators; but turns to the courts themselves. How do you account for this pre-judgment on your part?

ROSEN: I’ve been so struck by this conclusion and it wasn’t a pre-judgment, it was a conclusion that followed the experience of the two years that followed 9/11. When we think about the great victories for a sensible balance between privacy and security … the stopping of the total information awareness program which a grand data mining system that was supposed to track the buying and browsing habits of Americans. The stopping of the national identification card; the sunset provisions for much of the Patriot Act. And the efforts to refine the Patriot Act so it was focused on terrorists rather than low-level criminals; all of these initiatives came, not from the courts, but from Congress. The courts have been relatively quiescent in responding to broad claims of unilateral authority. It’s a mixed story, the initial impulse on the parts of lower courts was to resist some of the most extravagant claims; then appellate courts were generous and, as public emotions cooled, there’s a resurrection of libertarianism.

HEFFNER: How do you explain that?

ROSEN: I think it’s a persistent pattern. That the courts have followed public opinion rather than challenging it. There’s a wonderful political scientist, called Robert McCloskey who I think we both know and like, who recognized the elect able fact that throughout American history the Supreme Court and the lower courts have been barely ahead of public opinion … have tended to ratify consensus rather than challenging it, and on the rare occasions when the courts have challenged public opinion in a meaningful way, they’ve provoked a backlash, which has often precipitated a judicial retreat.

Contrast that with Congress. Who are the heroes of this book? The surprising coalition in Congress of Civil Libertarian Liberals and Libertarian Conservatives; one of the set of heroes are those unlikely Libertarians Dick Armey (CHECK SPELLING) and Bob Barr, the former House Majority Leader, the great Ahab of President Clinton … that Bob Barr was, the Clinton Impeachment Manager … it was they who with their Civil Libertarian friends resisted the most extravagant claims of Executive Authority and I am heartened by the fact that in Congress now the most sensible bills that are pending to refine the Patriot Act are proposed, not only by Senator Feingold, the only Democrat … the only Senator to vote against it … but people like Senators Craig and Durbin (CHECK SPELLING), good Republicans, former allies of John Ashcroft, who were appalled by their former colleague’s executive zeal.

So this suggest to me … you ask “who would think that Congress rather than the Courts would be the body that would resist the excesses of public opinion?” Libertarians on the Left and the Right are principled, they have a firm principle and that principle is suspicion of overwhelming governing authority.

There’s a constituency for this principle. The Justice Department’s polls suggest that the … that when the Patriot Act is polled, about 50% say that it strikes the right balance between liberty and security. 20% say it doesn’t go far enough and about 20% say it goes too far. And this 20% of anti-government Libertarians, who tend to be red State Conservatives as well as New York Liberals have a constituency and are represented in Congress and in calmer times this constituency is able, thoughtfully to refine some of the excesses of the Executive.

But, of course, if and when the next attack comes, we’re back to square one, we’ll have another Patriot Act and the excesses of public opinion will once again prove impossible to resist. But the apotheosis of Congressional Libertarianism is the optimistic story of this book.

I had not expected it, I’ve been heartened by it, and it distinguishes us from Europe, too. You think, I do talk a bit about the excesses in England, which we might or might now want to talk about. A state without separation of powers and without a Libertarian tradition, much more deferential to government authority. Suddenly I appreciated the tangible benefits of this American Libertarian tradition with special force, when I see it working out in Congress.

And I know you have a sympathy for Congressional regulation, too, so maybe you’ll be glad that the last time we talked, you chastised me for being too impatient with Congress. I think I’m coming around.

HEFFNER: Well, you say “impatience” and you talk about my attitude toward regulation. What you’re talking about here is an avoidance of regulation and you’re blessing it. You’re saying “thank God for that.”

ROSEN: Not total avoidance, because let’s think about the Patriot Act; it’s really a refinement and then let’s talk about specifics. You said, what would a good balance look like? A good balance would insure that surveillance authority could indeed be expanded to go after terrorists, but would not be expanded to go after low level criminals because the danger of that is something like the Nixon effect, when Nixon could look at the IRS records of his critics, the Viet Nam protesters and menace them, threaten them with prosecution for low level tax offenses … political retaliation, is one danger of this Nixon effect.

So the most thoughtful critics of the Patriot Act recognize that the Act itself is not entirely bad and the provisions that allow for secret searches of data without individualized suspicion, but insist that the victims of these searches be identified objects of foreign powers, that’s a perfectly defensible relaxation of ordinary surveillance because of the severe nature of the threat.

But the most controversial parts of the Patriot Act, like Section 215, this is the part that’s got the librarians of America all upset. They are America’s most reliable civil libertarians. This allows for secret searches without notice to the parties for all people, all citizens related to all crimes, not just terroristic crimes.

And the bills that propose to fix the Patriot Act, proposed by Senators Feingold, Durbin and Craig want to resurrect the requirement of identifiable agents of foreign powers. They say you can have … it’s a bargain basically, the government strikes … you can have the surveillance authority for the really bad guys, but you can’t have it for ordinary citizens. And if you find evidence of low level wrong doing, you can’t use it.

The Germans have recognized this, there Secret Service has much broader authority than ours does; their domestic intelligence service. But if they find evidence of low-level crimes … adultery or things that have nothing to do with terrorism … they can’t pass it on to ordinary law enforcement. So that’s a … that’s a sensible balance. It’s a bargain and it’s not a total absence of regulation. It’s not …your right to resist the Libertarians who say we should have no surveillance authority at all, this strikes me as a thoughtful compromise. Now will it pass, I don’t know, and the pressures are strong against it. But that’s in the legal arena, an example of the kind of balance I have in mind and we should talk about what the technologies would look like.

HEFFNER: Well, first, I find it passing strange that you would embrace what I would consider such a naïve assumption that you can do these things and maintain them in balance. That you can have this information and that it will not be used. Do you really believe that?

ROSEN: Ah, well this is, of course, the danger. And the political reality is that the delicate balances that have tried to impose these limitations on the use of data, do as you say, tend to relax in the face of political pressure. Title 3, which is our wire-tapping statute passed in 1968, a model of a thoughtfully wrought surveillance law, which allows for broad surveillance with notice and oversight. Originally only for violent crimes, you couldn’t imagine a more beautifully designed surveillance law for a good, thoughtful Civil Libertarian.

Well, as the years passed, there was tremendous pressure to prove that Congress was tough on crime and Title 3 now is mostly used, not for violent crimes, but for lower level crimes, drug crimes and so forth. So the hydraulic political pressure to expand the list is serious.

HEFFNER: And that hasn’t ended.

ROSEN: No, it hasn’t and that’s why … again … I’m happy about the theoretical possibility of these laws, whether they can be passed and maintained, is another question. Then you ask what about the …

HEFFNER: Excuse me … you say passed and maintained. Who is going to maintain them … it’s going to be the court system …

ROSEN: Yes.

HEFFNER: Which you have just, in a sense, denigrated.

ROSEN: Denigrated in the broad sense of creating an architecture of balance between liberty and security. But not in the sense of exerting meaningful oversight at the margins, and there’s nothing simple about the structures that we need when we’re thinking about this balance. It’s not less fundamental at the Constitutional level than the problem that faced us at the Founding; the idea of really designing laws of technologies that can maintain this equilibrium is, is one of the most complicated and urgent challenges we face and judges do have a crucial role to insure that the laws are applied as they are designed and also to resurrect a measure of portionality.

If the vision I’ve sketched out legally is an idea that the most invasive searches are permissible for the most serious crimes … judges might, as they did in the eighteenth and nineteenth century refuse to allow searches that violate a sense of portionality. There’s a test that the Privacy Commissioner of Canada had suggested that judges might impose when evaluating particular surveillance technology … he said, “Judges should ask whether the search is necessary to stop a very serious crime. Effective in actually bringing about it’s objective and the least intrusive measure on privacy.” In other words, we can’t imagine less intrusive measures. And finally, proportional … the intrusiveness of the search as proportional to the invasiveness of the crime.

This test, it’s like a form of strict scrutiny in the First Amendment arena … you can imagine judges applying it. But I just want … I’m not saying judges have no rule, I’m just as a predictive, empirical matter and not putting the bulk of my hope on judges, who tend to follow public opinion.

HEFFNER: Well, it’s interesting. You mention the Germans and I thought of this quote from you, from your book, from your chapter on “An Escape from Fear” … “the German Constitution, for example establishes a principle of proportionality that authorizes German judges to balance in each case a defendant’s privacy interests against the strength of the suspicion and the seriousness of the offense. Invoking this doctrine, German courts have held that a greater intrusion will not be permitted when a less intrusive method would be sufficient.” Do you believe or do you not believe that our courts are capable of putting life into that proportionality?

ROSEN: I do not, as a predictive matter, believe they are likely to do so. Because they’ve gotten out of the habit of applying precisely that principle during much of the post war period for the reason that American judges are much less deferred to than German judges. Our public is suspicious of any forms of judicial discretion which it tries to cabin with rules like the sentencing guidelines, which prohibit judges from engaging in case by case balancing, is afraid of discretion because it’s considered a form of elitism.

And that’s why our Fourth Amendment doctrine, our Constitutional law has evolved in the opposite direction of the Germans and has given judges less discretion to make those kinds of balance in judgments. Think of the great case, and it was a great case … involving whether the woman who was arrested for not wearing a seat belt … ordinarily she would have gotten a citation … this crazy cop arrested her, her kids were taken off to the station, she was weeping. She sued. She said it’s unreasonable … it’s a disproportionate invasion between the minor offense and the grotesqueness of the seizure.

And the Supreme Court, in a very unfortunate decision, five to four … written by none other than Justice David Souter, who’s sometimes more friendly to civil libertarian concerns, rejected it on the grounds that there was no requirement of proportionality in the Fourth Amendment. I think that was unconvincing on historical grounds, but it was also a great ratification of the sense that American courts are not comfortable with this kind of balancing these days.

HEFFNER: Do you think that in the Fourth Amendment you find sufficient reference to … even stretch it out … to proportionality.

ROSEN: Let’s recall it’s text … the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated. And I do think that a search is far more unreasonable when it is related to a low-level crime and is extremely invasive as opposed to when it is invasive and related to a terrorist. So, I do find warrant in the history of the Fourth Amendment and you know, if I were running my imaginary Fourth Amendment, I could imagine judges doing this in good conscience. Just predictively, descriptively … I’m not putting my money on it.

HEFFNER: The real reason, we think we’re, generally as a people capable of making right use of that rule.

ROSEN: This is not a book that’s terribly optimistic about the rationality of the public opinion state. Now, of course, the social scientists and empirical psychologists and economists resist the phrase “irrationality”. They don’t like to call the public “irrational”, they prefer terms like “quasi-rationality” or “bounded rationality”.

And one of the most interesting literatures I came across are the many limitations in the public mind that prevent us from processing highly terrifying images of low probability risks in reasonable ways. Limitations like … we don’t need the jargon … but we can use it for shorthand purposes …the “availability heuristic” is the fancy word. Which basically says people are most afraid of the risks that they can most easily remember. So they are much more afraid of being victimized by a falling building, after seeing pictures of the World Trade Center falling, than they are of dying of heart disease; because they don’t see pictures of that.

This makes us terribly vulnerable to television images because people become all the more afraid of low probability, highly dramatic pictures of risks on television. The television stations have an incentive further to exaggerate the probability of these risks in order to attract an audience and in some ways the media and the public corrupt each other.

HEFFNER: This is a fascinating point that you make and you make it so interestingly in your book. You say particularly in the past generation with the proliferation of channels … if you’re talking about television … with the proliferation of every other kind of visual input into our lives. And then you quote George Gerbner with his research into the, the fear that you will find rampant in people who spend much time before television which pictures they have to fear. How do you get out of that? You quote Gerbner as saying the pictures in our minds, in our heads is what makes us do irrational things. But we have more and more of those pictures.

ROSEN: Clearly the best thing you can do to escape from these pathologies of public opinion is turn off the damn TV. I’m sorry the cost, of course, will be the rare exceptions like The Open Mind. But people who watch a lot of television, especially cable television, 24-7 TV after 9/11 and all of the empirical surveys were much more anxious, much more afraid, convinced that they were going to be personally victimized and how could they not be?

You see the constant alarmism, the shrieking alarmism of cable … chilling chatter … it announces after every tiny little bit of intelligence … is passed on. People who watch this sort of stuff live in a distorted world view where they are convinced that they and their children are going to blow up at any moment.

HEFFNER: Wait a minute, wait a minute, wait a minute. You say “distorted” and I was concerned when I began the book … the very beginning and maybe you don’t take responsibility for this, but in the Random House notes, “in our zeal to catch terrorists and prevent further terrorists incidents, we are violating essential American rights to privacy and liberty, largely because of irrational fears.”

Now, later you take the wind out of those sales; you indicate that the fears have some very good basis in fact. But which is, how do you feel about that?

ROSEN: This is the crucial question. Right now we’re less afraid than we were after 9/11, but perhaps we’re not afraid enough. How afraid should we be? This is a question that’s very difficult to answer when we face a low probability, but highly terrifying risks, undeniably real, but difficult to predict precisely who will be victimized. Now if you ask how afraid should we be? The psychologists of fears tell us that’s in part a political question.

HEFFNER: What do you mean “political question”?

ROSEN: Well, people have different views about how broadly risks out to be distributed. If you think that a single … or you know, two or three deaths from a mall bomb in a shopping mall are unacceptable and everything should be done possible to prevent even that risk, then you might say that we should create far more of a police state than we actually have.

What’s striking about the fear literature is there’s an interesting divide between the way that most Americans respond to these risks and a small group of Americans who are less fearful than everyone else. Twenty-five percent of Americans tend to be less afraid of being victimized, more willing to impose the risks on everyone else than, than their fellow citizens. Whoever it is … Paul Slivick of the University of Oregon calls this the “White male effect”; these are White men less fearful than both White and African American men and women and what can explain their greater stoicism? They are more Conservative, more hierarchical, less egalitarian and more individualistic. In short they think the government should have less responsibility for a “Zero Risk” Society in which even the smallest, but highly terrifying risk is completely effaced.

That, to some degree, is a … call it a political, a social decision about just how generalized our fear should be. In a sense the post 9/11 fears were irrational. A great majority of Americans thought there was a 50% chance that someone they knew would be personally victimized. And a 20% chance that they, themselves, would be victimized. Thankfully those predictions turned out not to be true. But in order to have come true, we would have had to face attack on the magnitude of 9/11 nearly every day.

So, statistically it doesn’t make sense to individualize, personalize these risks as much as Americans do. And because we tend to be more individualistic, more egalitarian, we are more afraid than the Europeans. The French, the Germans … just recently the Russians are now dealing with these terrible attacks are able to live with fear better than we are because their political culture tends not to individualize so much and, and is willing to live with a degree of uncertainty that we’re not.
HEFFNER: You, you’re concerned … talking about uncertainty … you’re concerned about the Zero risk syndrome.

ROSEN: I am. I am.

HEFFNER: What do you think it stems from?

ROSEN: I think it’s a deeply democratic impulse.

HEFFNER: MmmHmm.

ROSEN: It has nothing to do with 9/11, of course. Our environmental laws are constructed … requiring us to pay millions of dollars in clean-ups where the environmental risks … the elimination of radon, for example, or of small chemicals that pose a marginal, a tiny risk. But there’s something very, there’s something about democracy that demands that each risk be generalized; everyone has to feel personally at risk and if, a risk exists and is general, we demand some kind of government compensation for it in our legalized society. So in the 19th century the great Mark Twain novel, “The Gilded Age” is able to describe a great steam ship accident in which thousands are killed and the newspaper headline is “Nobody to Blame”. Contrast that with the terrible ferry accident, the Staten Island ferry accident … the Commission set up, who is to blame, the lawsuits. Lawrence Friedman has talked about a total justice society where no risk can go uncompensated. And this is a democratic impulse and I think it’s an unrealistic one that gets us into some degree of trouble.

HEFFNER: But it is one that we can admire, too, in terms of being … of our concerns for human life; our concern about suffering. That is, too, what distinguishes us from others.

ROSEN: It is, it is, and democracy … this is a book, I hope about the strengths and weakness of democracy. Its pathologies as well as its strengths. But … compassion is perhaps not the right way of describing the zero risk mentality. I think it’s … if not a selfishness, an individualism, which is a tendency which I contrast with individuality in the book. It’s, it’s more of a false sense that I am personally at risk and therefore someone’s gotta protect me against these remote risks.

HEFFNER: Well, I …

ROSEN: And that’s an impulse I’m less sympathetic to.

HEFFNER: Also, life, liberty and the pursuit of happiness; they are ours, we’ve said so in our basic documents, and we believe that, and I want you, if you will to stay where you are so we can talk more for another program about all of these issues. Will you?

ROSEN: Please.

HEFFNER: Jeffrey Rosen. Thank you for joining me today on The Open Mind.

ROSEN: Thank you for having me.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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