- How Patriotic is the Patriot Act: Freedom versus Security in the Age of Terrorism
Amitai Etzioni, for those not familiar with his work, is a sociologist who directs the Institute for Communitarian Policy Studies at George Washington University. He is the author of some twenty-four books on a range of topics in his field, but in recent years he has focused his efforts on founding a school of social and political theory which he terms "responsive communitarianism."1 "A key tenet of responsive communitarianism," he writes, "is that a good society is based on a carefully crafted balance between liberty and social order, and a combination of particularistic (communal) and societywide values and bonds."(p. 4). In How Patriotic is the Patriot Act, Etzioni approaches the Act, and the debate about security and freedom after September 11, from a communitarian perspective. He argues that his version of communitarianism offers a middle ground in what is otherwise a mostly polarized debate in both the popular media and the academy in the United States.
At the outset of the book, he makes a number of assertions that are meant to foreground communitarian principles at work in the U.S. Constitution itself. The Fourth Amendment, for example, does not protect against all search and seizure but only "unreasonable" search and seizure. The tension between communal and individual interests is, in this way, inherent in the constitutional formulation of many of the basic rights. The point for Etzioni is that this inherent balancing should preclude from arguing that, in the face of some proposed measure, we would "give up rights" in exchange for security. He is interested in the scope of the proposition that certain "security enhancing measures" can be reasonable and not in violation of any rights. In the wake of 9/11, and with the view that America will likely face "more and worse attacks," he suggests the idea of what is "reasonable" ought to be revisited.
In its broad outlines, Etzioni's approach to the U.S.A. P.A.T.R.I.O.T. Act2 can be compared with Stanley Cohen's and Irwin Cotler's respective approaches to Canada's Anti-Terrorism Act3 and related measures.4 All three [End Page 162] figures cast themselves not as adversaries to liberals and civil libertarians, or as apologists for governments that have expanded the scope of state power under anti-terror legislation—but rather as harbingers of a new approach to rights theory; one closer in essence to the rule of law, common sense, and moderation. In contrast to either Cotler or Cohen's somewhat more detailed work on Bill C-36, Etzioni's short book surveys only a handful of the many security measures dealt with in the P.A.T.R.I.O.T. Act, including changes to the process and tests for obtaining wiretaps and conducting electronic communication surveillance. But in a short space, he covers a lot of ground and offers useful insights and interesting historical detail about the practical and legal workings of counter-terror investigations in the last thirty or so years.
An entire chapter is devoted to issues raised by the U.S. government's use of new technologies to search large amounts of private data. Focusing on the Carnivor, Key Logger, and Magic Lantern systems, Etzioni explains, in general terms, how these tools work, the legal framework in which they have been deployed, and the various legal and practical concerns to which they give rise. Etzioni argues that although these technologies are used to troll through a great deal of data, they are designed to do so in a minimally invasive way; moreover, the mere fact that emails and phone conversations may be processed by these tools does not necessarily mean that privacy has been violated. "None of [the email messages] is "read" unless it is caught by the filter and passed on to a human observer." (p. 63). He offers statistical evidence that authorities have used these tools sparingly. He also argues that...