[IP] more on Privacy and 9/11
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Thu, 01 Jan 2004 13:21:11 -0600
From: Benjamin Kuipers <kuipers@xxxxxxxxxxxxx>
Subject: Re: [IP] Privacy and 9/11
X-Sender: kuipers@xxxxxxxxxxxxxxxxxxxxx
To: dave@xxxxxxxxxx, "sbaker@xxxxxxxxxxx" <sbaker@xxxxxxxxxxx>
Stewart Baker,
You may find it helpful to read a book, "Forgive and Remember: Managing
Medical Failure", by Charles L. Bosk.
http://www.amazon.com/exec/obidos/tg/detail/-/0226066800/002-2744556-0314459?v=glance
In medicine, too, decisions on which lives hang are made with partial
knowledge. Sometimes the physican makes the "right" decision --- the one
that gives the patient the best chance of survival and recovery --- but the
patient dies anyway. Sometimes, then, with more information available from
autopsy, it becomes clear that a different approach to treatment, perhaps
one that was rejected earlier as unlikely to succeed, would have saved the
patient's life. But this doesn't mean that the original decision was
wrong, or that the less promising treatment should henceforth be the
treatment of choice for future patients.
And, of course, there are also human errors, incompetence, and malpractice,
all of which need to be discerned and treated appropriately. If it were
unacceptable for physicians to make any mistakes at all, we would have no
more physicians, and we would all be much worse off. However, if a
physician makes too many mistakes, they are observed and remembered, and
that physician may be given fewer responsibilities, or even removed from
the field. But we must all accept that there will be mistakes, and people
will die from some of those mistakes. We must learn from them, and make
corrections, but neither be overcome with guilt nor overreact and throw out
the good with the bad.
There were a large number of independent things that, if even one had gone
differently, would have prevented the 9/11 attacks. Just as, in the 2000
election there were a large number of independent things that, if even one
had gone differently, would have put Al Gore in the White House.
Of course, we must look carefully at each of these things. The point is
not, would doing that thing differently have changed 9/11, but would doing
it differently be a better policy overall.
Our Founding Fathers were deeply suspicious of governmental powers. They
arranged our government with an elaborate system of checks and balances to
restrain governmental power. They defined a superb negative-feedback
system that has helped keep our country going for more than two centuries,
in part because errors by those in power could be exposed by the press,
discussed by the people, and used by the political opposition, through the
voters, to change the decisions that government was making.
That negative feedback system is at the heart of our success as a
country. We know that whoever is in power likes to keep their power, and
they have in the past been willing to use the machinery of government,
including law enforcement, to suppress their opponents. That is, to attempt
to disable the negative-feedback system.
We do need more effective ways to fight terrorists. And I believe that
there are surely technical improvements to our information infrastructure
that will make it easier to solve problems like the one you describe, even
while protecting our essential liberties.
It would be a disastrously bad bargain to buy added efficiency at one
technique to meet one kind of threat, at the cost of disabling the
fundamental negative-feedback steering mechanism that has given our country
the power and flexibility to respond to its own mistakes and correct its
course.
Forgive. You and your colleagues made a reasoned and reasonable judgment
about risks and benefits, based on your knowledge at the time. Maybe it
was the right decision, but we suffered a bad outcome. Maybe there are
corrections to be made, but don't overreact. (Another medical
analogy: most of the damage caused by most infections is due to
overreaction by the immune system, not by the infecting organism
itself. Even so, it's obviously well worth having an immune system.)
Remember. And understand. It's a complicated world out there, and lots of
actions have unintended outcomes. We need to understand the threats and
their causes, to know how to fight them. We also need to understand our
own country and how and why it works, to know how to preserve, protect, and
strengthen it.
Especially, we need to understand the power and value of the negative
feedback system embedded in our government, and how it draws on the
diversity of knowledge and opinion in our society. We need it now, more
than ever.
With my best wishes,
Ben Kuipers
At 11:59 AM -0500 1/1/04, Dave Farber wrote:
Date: Thu, 01 Jan 2004 11:55:15 -0500
From: "sbaker@xxxxxxxxxxx" <sbaker@xxxxxxxxxxx>
Subject: Privacy and 9/11
To: "'dave@xxxxxxxxxx'" <dave@xxxxxxxxxx>
Dave,
I thought your list might find my recent article in Slate interesting, and a
challenge. The article is at http://slate.msn.com/id/2093344/.
...
I feel some responsibility for sending the government down that road.
...
It breaks my heart to read this exchange. That "wall"-between intelligence
and law enforcement-was put in place to protect against a hypothetical risk
to civil liberties that might arise if domestic law enforcement and foreign
intelligence missions were allowed to mix. It was a post-Watergate fix meant
to protect Americans, not kill them. In fact, in 1994, after I left my job
as general counsel to the National Security Agency, I argued that the wall
should be left in place because I accepted the broad assumption that foreign
intelligence-gathering tolerates a degree of intrusiveness, harshness, and
deceit that Americans do not want applied against themselves. I recognized
at the time that these privacy risks were just abstract worries, but I
accepted the conventional wisdom: "However theoretical the risks to civil
liberties may be, they cannot be ignored." I foresaw many practical problems
as well if the wall came down, and I argued for an approach that "preserves,
perhaps even raises, the wall between the two communities."
I was wrong, but not alone, in assigning a high importance to theoretical
privacy risks. In hindsight, that choice seems little short of feckless, for
it made the failures of August and September 2001 nearly inevitable.
... And sooner or later, I fear, that August will lead to another September.
---
Stewart Baker heads the technology law practice at Steptoe & Johnson in
Washington, D.C. From 1992 to 1994, he was general counsel of the National
Security Agency.
--
Benjamin Kuipers, Professor email: kuipers@xxxxxxxxxxxxx
Computer Sciences Department tel: 1-512-471-9561
University of Texas at Austin fax: 1-512-471-8885
Austin, Texas 78712 USA http://www.cs.utexas.edu/users/kuipers
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