Daniel J.H. Greenwood

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Internet Privacy, the Patriot Act and Abu Ghraib

Daniel Greenwood

Salt Lake Tribune, Sunday September 26, 2004
Library Link of the Day, Sept 27, 2004

The Faculty Senate of the University of Utah recently passed a resolution, entitled the Preservation of Academic Freedom Resolution, that is an implicit criticism of the Patriot Act and other aspects of the current “war” on terror.

The internet has aspects of a dark alley: an unpoliced place where large and poorly socialized people can do whatever they want without fear of being caught. It also has aspects of George Orwell's 1984, where every action is monitored and no space is left for privacy or independent action.

Our computer professionals are under regular pressures to limit the first of these: to find ways to suppress or trace viruses, limit spam, police crime, and now, under the Patriot Act, assist the government in the pursuit of terrorists or -- perhaps -- its political opposition.

For example, in an academic environment, lost work is a major fear. Computer systems, therefore, must be designed with routine back-ups. But that means that all computer-based records survive after the user has attempted to delete them.

Similarly, the technology of the internet makes web-browsing appear anonymous even though it is easily monitored. In fact, the need to police viruses and other mis-use means that, on this campus, all internet use is routinely monitored.

Off-campus e-mailers, in contrast, currently can conceal their identities -- but solving the spam problem may well require eliminating that anonymity.

The Preservation of Academic Freedom Resolution seeks to help institutionalize a countervailing pressure to support the countervailing value: preserving liberty by preserving a space free of easy monitoring. Specifically, it seeks to reduce the number of records that could be used for improper or repressive witch hunts.

In a decent and free society, it should not be possible to recreate a patron's web searches or library reading. Deleted drafts and e-mails should at some point be gone for good, so that poorly considered or private words do not remain forever enshrined on an internet portal. Intemperate words, properly deleted, should not be forever available to future litigants or McCarthyite investigators.

Because freedom requires balancing both security and privacy, the Resolution uses primarily procedural mechanisms rather than specific regulation to seek to limit excessive record keeping and monitoring. In its operative language, the Resolution urges the administration and the computer staff to explicitly consider the necessary trade-offs between privacy and security and to regularly audit and report on the manner in which the trade-offs are being made in different parts of the University. For the same reason, it urges the University to expose its decisions to the maximum amount of public scrutiny -- even when the Patriot Act attempts to work in dark secrecy.


The importance of the Resolution goes beyond the immediate problem of internet privacy. The Resolution takes a fundamentally different approach to the problem of security than the Patriot Act.

Security in a free country requires respecting our fundamental liberties, not discarding them before outsiders even try to take them away.

The Patriot Act is, in large part, a distraction in the effort to reduce terror. Al Qaeda is no more likely to be stopped in the libraries and web searches of the University of Utah than it is on the battlefields and among the missing weapons of mass destruction in Iraq.

Free societies win because freedom and justice are stronger than their opposites. Even if we eliminate our own freedoms at home and fight brutally abroad, we will still be only a third-rate oppressor. We can never out-torture or out-spy or out-suppress Al Qaeda or the dictatorships of the world.

What we can do is to live a life that is more attractive and more decent than religious oppression, violence, poverty and terror. Our victory must come by playing by our rules, not theirs. The Geneva Conventions are our rules; secret police inquiries and trials without independent judges are theirs. Our strength lies in open and free enquiry not censorship; due process not Abu Ghraib or Guantanamo; just wars of self-defense not “preventive” war based on deceit.

Daniel J.H. Greenwood is professor of law at the S.J. Quinney College of Law, University of Utah, where he specializes in questions of the state's relationship to groups of citizens. © September 23, 2004.