Cynthia Laberge was the 2008-2009 InternetNZ Senior Research Fellow in Cyberlaw at Victoria University of Wellington. 

The Introduction to her research on the topic of To What Extent Should National Security Interests Override Privacy in a Post 9/11 World? (published December 2010) follows.  This paper uses international discussion of these issues to inform the New Zealand position.  It discusses how the balance might be found between security and privacy.  This is a complex question and this paper provides a comprehensive guide to what needs to be considered in that balance.

Introduction

• If a bird has two legs, and a man has two legs, a man must be a bird. ¹   
• If a man is suspected of being affiliated with terrorists, he must be a terrorist. ²

Is this where we are headed? In the name of stopping terrorists are we compiling data on innocent people who share a similar profile as those on our "most wanted" lists, and treating them the same?

Since 9/11, the world has become obsessed with terrorism. Understandably so. We expect our governments to protect us, at a minimum from foreseeable acts of violence. It is an onerous commission. But in its zeal to do the right thing, are governments actually doing more harm than good? And in the name of security, are we complicit in sacrificing liberty?

The security/liberty debate is not new. It has been ongoing since the time of Cicero at least ³:

Though liberty is established by law, we must be vigilant, for liberty to enslave us is always present under that very liberty. Our Constitution speaks of the 'general welfare of the people.' Under that phrase all sorts of excesses can be employed by lusting tyrants to make us bondsmen.

But with the law unable to keep pace with technological advances, are we letting technology determine how best to protect us? With oversight and accountability at an alltime low, are the technological programmes that are being put in place to combat terrorism effective? And if so, at what cost?

Regional, national and global databases, containing records on everything from finances and vehicle ownership, to DNA records, are booming. Investment in technologies to analyse and crossreference data in those databases is also booming. The securityrelated goal: to stop the next terrorist attack. Governments justify this previously unprecedented accumulation of data on the grounds that they are faced with an unprecedented threat. If this is true, does it also justify the unprecedented secrecy surrounding our governments' activities?

This paper is an attempt to chart the path we are currently on in balancing national security with privacy and, ultimately, liberty by giving an overview of the cooperative efforts, privacy and counterterrorism laws of four countries (the United Kingdom, United States, Australia and New Zealand) and four international institutions (the United Nations, the OECD, the Council of Europe, and the European Union), and the technologies employed in the fight against terrorism (used predominantly in the United States). It makes no predictions, nor does it presume to present an indepth analysis of privacy or counterterrorism laws, which have already been covered in depth elsewhere by experts.

What this paper attempts to do is provoke thought and stimulate discussion on the direction that the West (primarily) is taking to fight the "scourge of international terrorism." ⁴ And to posit what role we can play in holding government accountable for protecting our security, without unduly sacrificing our privacy, and thereby our liberty.

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Footnotes

1.Professor John Haven Mental Philosophy: Including the Intellect, Sensibilities and Will (Sheldon and Company, New York, 1862) at <www.archive.org>. The original quote reads "All birds are bipeds, no man is a bird; therefore no man is a biped."

2. Department of Homeland Security (DHS), Office of the Secretary, Privacy Act of 1974 (US) 5 USC § 552a Public Law No 93579; Customs and Border Protection Advanced Passenger Information System Systems of Records (23 August 2007) 72 Federal Register 163 4834948353 <www.edocket.access.gpo.gov>.

3. Marcus Tullius Cicero, Roman orator – 106 – 43 BC

4. Resolution on threats to international peace and security caused by terrorist acts UNSC Res 1377 (2001)  <www.un.org>.