Susan Herman's "Taking Liberties"

Susan N. Herman became president of the American Civil Liberties Union in 2008 after serving on its national board for twenty years. A constitutional scholar and chaired professor at Brooklyn Law School, she is the co-editor (with Paul Finkelman) of Terrorism, Government, and Law and the author of The Right to a Speedy and Public Trial.

She applied the “Page 99 Test” to her new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, and reported the following:

Page 99 of my book is a good example of the Page 99 test working well.

Taking Liberties is about the many ways in which antiterrorism measures we launched in the fall of 2001 affect ordinary Americans – far more extensively than most suspect. I discuss many types of post-9/11 changes in the law, including supersized criminal laws, bloated and unreliable security screening programs, the conscription of businesses and charities in a bizarre world of watchlists, Know Your Customer and Suspicious Activity Reporting forms, etc.

But the most widely known changes in American law, and the changes affecting most ordinary Americans, are enhanced governmental surveillance powers. Government has many new tools to find out all about us without getting court approval for an investigation or even without any basis for suspicion of the person whose information is being explored (and conversely, it has become far more difficult for us to know what the government is doing).

Many people ask whether the massive invasion of privacy entailed is really problematic, or indeed of concern at all in an age where people don’t expect privacy. Page 99 is where I get to the heart of the matter and begin to provide some answers to the key question, “Why should I care if the government knows all about me if I’m not doing anything wrong?” Here’s what I say on page 99:

In his groundbreaking 1967 book on privacy, Alan Westin posed the question, “Why should I care what the government knows about me if I’m not doing anything wrong?” He then answered this question: “The answer, of course, lies in the impact of surveillance on human behavior.” Students of privacy since then have identified many different ways in which behavior is affected by pervasive government data collection and data mining.

Intrusion. Business records about you, including bank records of the checks you write or online payments you make and your medical or school records, provide a detailed and profoundly revealing picture of your whole life to any reviewer. Have you written a check to an HIV-testing clinic? Made a contribution to a splinter political group? Planned a trip to Yemen? Entered an institution for alcohol rehabilitation? Failed physics? The broader the dissemination of information about your life, the more you are exposed to others’ suspicion or scorn. Is it more or less upsetting that you won’t know how many people on the government payroll may be reviewing and reacting to details about your life? Will your behavior be affected if you don’t want to expose yourself by leaving tracks – perhaps paying for the HIV test in cash or deciding to go to the Grand Canyon instead of Yemen?

Confidentiality. If you share information about your physical or mental condition with a doctor at a hospital, or information about your finances with a bank in order to apply for a mortgage, you agree to share with a limited audience for a limited purpose. Your sense of trust in that relationship may be shaken by knowing that the doctor or bank may pass that information on to government databanks, voluntarily or not. Without any real guarantee of confidentiality, you may not be willing to share information the doctor or mortgage broker needs in order to help you.

Control. If you cannot choose the extent to which your information will be shared, you lose control of who will have access and whether you will be judged out of context. Scott McNealy, CEO of Sun Microsystems, famously said, “You already have zero privacy – get over it.” But young Facebook users who do not mind exposing their views or their bodies on the Internet nevertheless care deeply about whether or not they can control the information they decide to post.

Identity Formation. Michel Foucault found a powerful image of the modern world in Jeremy Bentham’s “Panopticon,” a circular prison where the inmates are within view of their guards at all times. This constant....”

And there p. 99 ends. The rest of the discussion and the rest of the book are quite interesting too, and quite important. I go on to discuss what we are actually getting in exchange for intrusions on our liberty and privacy, and reach some uncomfortable conclusions.

Learn more about Taking Liberties at the Oxford University Press website.

--Marshal Zeringue