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Ensuring privacy's post-attack survival

As Congress considers measures to defend against outside threats, policy analysts Jeffrey Eisenach and Peter Swire argue for the creation of a commission on privacy and personal freedom.

The bill to create the new Department of Homeland Security is now before the Senate. The new Department, once created, will enhance the federal government's ability to collect and use information about American citizens--or in today's favorite catch phrase, to "connect the dots."

But which dots will be connected, by whom and for what purpose? Here is a sample quiz for you to consider:

• First, imagine a program in which the federal government trains mail carriers and utility workers to look for possible terrorist activities in the homes and neighborhoods where they work, and report to a centralized database. Is this a common sense updating of Neighborhood Watch or the creation of an informant society?

• Second, consider having frequent fliers volunteer to undergo a thorough background check in exchange for faster check-in at the airport. Should this be the free choice of business travelers? Or is it a dangerous idea, forcing individuals into a choice between divulging secrets to the government or being consigned to the long, slow "suspects" line at the airport?

• Third, city governments can take advantage of low-cost video technology to set up watch on public streets and buildings. Is this effective policing of public spaces or another step into a world in which the government can follow citizens anywhere, potentially watching lovers embrace or reading the lips of people speaking at a sidewalk caf??

These three questions, of course, all involve actual proposals since Sept. 11. The first is the Terrorist Information and Prevention System (TIPS), which the Bush Administration has said would no longer include information gathered in people's homes. The others involve the "trusted traveler" program under consideration at the Department of Transportation and the video surveillance cameras installed in Washington, D.C.

We do not pretend that there are easy answers. At the moment, the need to connect the dots associated with terrorism is first on our minds, as

There will be temptations to combine the information-gathering power of technology with the police power of the new Homeland Security Department to pursue all sorts of "worthy" agendas.
it should be. In the future, however, there will be temptations to combine the information-gathering power of technology with the police power of the new Homeland Security Department to pursue all sorts of "worthy" agendas.

The obvious risk is a permanent diminution in privacy, personal liberty and the open society freedoms that have characterized America from the start.

As a Republican and a Democrat who have each served in the White House (one under Ronald Reagan, the other under Bill Clinton), we believe these issues deserve much greater public attention than they have received to date. That is why we support, as part of the legislation the Senate will take up this fall, a new commission on privacy, personal freedom and homeland security.

The legislation creating the Department of Homeland Security provides a natural opportunity to form a commission that can consider these enduring concerns. One important mission of the commission would be to take account of the revolutionary changes in recent years in communication, surveillance and database technology, and the implications of those changes for individual privacy and personal liberties. The last such national commission issued its report a quarter century ago, in 1977.

The commission would also examine how to maintain the rule of law, government accountability and the goals of the Freedom of Information Act in this new era. Since terrorists can access almost any data over the Internet, how do we continue to have open government without compromising our security?

More broadly, the chilling reality of deadly threats from abroad striking within our own nation, by both physical means such as airplanes and by virtual means such as cyberattacks, suggests that we are going to have to reconsider the tradeoffs between freedom and

Whatever tradeoffs we make between freedom and security, it is important we make them in the open.
security. The sustained national debate the commission would foster should help us consider what personal liberty and the Bill of Rights will mean in a time of new technology and new security concerns. Whatever tradeoffs we make, it is important we make them in the open.

Creating a commission, of course, should not substitute for creating other checks and balances in the Homeland Security Department or more broadly in government. The House of Representatives voted to add a chief privacy officer to the new department. The House also clarified that nothing in the bill is designed to authorize a national ID card or system.

Whatever checks and balances survive the congressional process, there should also be a way to study these issues after this year's push to legislate is over. The commission would address conservatives' concerns about the growing intrusiveness of government into all aspects of daily life. It would address liberals' concern, harking back to the 1960s and 1970s, that vulnerable individuals and groups will become the special targets of government snooping.

Most important, the commission on privacy, personal freedom and homeland security would address the concerns of all Americans that we organize government not only to defeat terrorism and protect our nation, but also to maintain the heritage of freedom that gives those efforts meaning.