November 15, 2001
Does fallout from Sept. 11 threaten rights we take for granted?
Since Sept. 11, Americans and people living throughout the world have been adjusting to new realities and new questions. For the rest of fall quarter, University Week will explore some of the issues of this new reality in a weekly question-and-answer column with faculty and staff. This week’s expert is Anita Ramasastry, an assistant professor of law and associate director of the Shidler Center for Law, Commerce and Technology.
University Week: President Bush recently signed the Anti-Terrorism Bill after heated debate over its alleged erosion of civil liberties. Was the bill even necessary?
Anita Ramasastry: There probably were some changes that were needed. I’ve studied money laundering, and there were holes in our existing legislation – but the holes that needed to be patched had been identified before Sept. 11. So, I think you’re seeing two phenomena. One is fixing problems that had been identified before but that now legislators are willing to support. Secondly, there is the need to appear to be doing something, and so politicians are quickly enacting legislation that may have surprising consequences.
UWeek: What are the civil-liberties concerns in the new law?
Ramasastry: The detention provisions for aliens, and then the surveillance powers that law enforcement has in terms of electronic transmissions and the Internet. As far as detention of aliens, we’re also talking about people who are here as permanent residents. Even before the legislation came into effect, detention of suspected terrorists was taking longer and aliens were being held as material witnesses. It’s been taking longer for the Justice Department to charge people. So you already have the problems of people being detained, of not having access to attorneys and there isn’t information available for family members of why someone’s being detained.
UWeek: How does the new law add to these concerns?
Ramasastry: The definition of what constitutes terrorism or supporting terrorism has been expanded. So, facilitating a terrorist business, or giving monetary donations, or writing and speaking in a way that would incite other people to acts of terrorism, are now relevant.
UWeek: The backdrop, of course is that there were people hanging around in motel rooms plotting terrorists acts. Were the laws on the books not adequate?
Ramasastry: There were provisions for holding somebody as a material witness, and that’s being used now. So that would be one means for bringing people in who may be essential to your investigation. Second, there is this Foreign Intelligence Surveillance Court that was created in 1996 that hasn’t really been used very much. I guess the question is just, how long you hold them. I mean, Attorney General John Ashcroft has talked about how 800 people or so have been detained. Some commentators say that in and of itself has prevented terrorist attacks. But it starts to sound like, “Well, we’re not detaining people in camps, but we’re sort of detaining a certain group en masse.”
UWeek: The bill also raises concerns about free speech?
Ramasastry: There’s supposed to be a legal standard. Words alone are not actionable; the language must be to incite people to violence. But how you define that, especially in this particular time, is something very open to debate. Similar laws are on the books in England, and community newspapers there have changed their reporting. So in addition to what might happen to individuals, is the chilling effect that you’re going to see on information flow in certain communities.
UWeek: Your parents are from India. Does that affect your response to the current situation?
Ramasastry: I’ve been meeting with a group of young South Asian graduates of the Law School to develop outreach materials on hate crimes, airport treatment, what your rights are as a passenger and so forth. Because there have been a lot of problems; obviously, the more violent responses are the ones that the news covers. So we’re helping to provide a legal support network for people who say they’ve either been the victim of hate crimes, or have questions about their rights. A classic example is Sikhs who wear turbans, and because they seem to the American mindset to look a little bit like Osama bin Ladin with the headdress, they are often stopped in airports. Turbans are hand-wound, so it takes a long time to actually undo them. There are specific ways to handle this with use of metal wands for conducting a search.
UWeek: How have you been affected personally?
Ramasastry: At the airport there are supposedly random security checks, but I joke and call it, “Random-Plus.” Because recently, for example, I was boarding a plane and was talking to a young computer programmer from India, and the two of us were the ones whose luggage was searched thoroughly. You just sort of cooperate because you understand what’s happening. In my family, my father bears more of the brunt because he is this dark guy with an accent, so he’s certainly been searched much more frequently.
UWeek: Immigrants have become objects of fear.
Ramasastry: Immigration is the flashpoint. We used to view immigration through an economic lens. Now we see immigration through a security lens. That changes our approach.
UWeek: At the Shidler Center for Law, Commerce and Technology, you have done research on Internet privacy. Is that also under threat?
Ramasastry: The new law gives law enforcement more power to monitor e-mails and to go to Internet Service Providers to track and trace without meaningful judicial review. Monitoring Internet activity, you get a little bit more insight than with phone logs, in terms of a person’s personal thoughts, just by looking at where they’re going with their Internet surfing. It’s always a situation of: does law enforcement have to demonstrate probable cause in going before a judge to get permission to conduct surveillance or interception?
UWeek: Doesn’t that require a court order?
Ramasastry: Yes, but there are always exceptions. For example, in the Foreign Intelligence Surveillance Court, it used to be that law enforcement could get court orders without showing probable cause only with respect to counter-intelligence, so there’s a “primary purpose” test. Now the primary-purpose requirement is gone; the government only needs to demonstrate that there is a significant purpose relating to counter-intelligence, which means that requests for surveillance related to traditional criminal activity can now go before this court. This court meets in secret, and a defendant won’t even be able to see the order that the court generates.
UWeek: It sounds as though this is an especially good time to be watchful of our basic freedoms?
Ramasastry: What’s happening is that you have certain government officials using terrorism as the veil through which they’re achieving other ends. For example, there was an existing anti-terrorism commission that is recommending a new “Hacker Court.” Connecting hackers to terrorism – when, in fact we haven’t identified the Internet as where the terrorist threat is coming from – raises the question of whether we need this new secret chamber. They’re saying that hackers may be prosecuted and treated as terrorists. Well, what are we talking about? If someone is engaging in espionage that includes hacking, well there are a lot of ways to prosecute that. As opposed to a 13-year-old who defaced a Web site. Similarly, when the original immigration legislation came out, it was really scary; it called for indefinite detention without judicial review. Some of the language from the Justice Department was so specific in the way it was drafted, that you wonder whether some of this was lying around in some drawer. It was pulled together so quickly.
UWeek. Is the Internet part of the solution to terrorism, or part of the problem?
Ramasastry: Sept. 11 in many ways was a low-tech fight. It hasn’t been information warfare, it hasn’t been nuclear weapons.
UWeek: But will recent events nevertheless affect what you do at the center?
Ramasastry: Absolutely. Our winter speaker series is going to be looking at the deployment of technologies – everything from bioterrorism, to encryption and civil liberties. And the 50 state attorneys general are going to be coming here for their annual Internet conference. Previously, privacy was on their agenda – now it’s security.
