Send in the online spooks?

In the aftermath of terrorism, civil libertarians are running for cover. But are they protesting too much?

By Katharine Mieszkowski

Sept. 14, 2001 | This week, the FBI obtained a court order, citing the Foreign Intelligence Surveillance Act that demanded specific information concerning selected subscribers to America Online and EarthLink, the country's two largest Internet service providers. On Tuesday, shortly after news of the destruction of the World Trade Center began to spread, the operators of the MagusNet Public Proxy Server, an "anonymous remailer" designed to provide security for Internet e-mail and other online communiquis, voluntarily shut down to prevent the system's being abused by terrorists (or pranksters). Meanwhile, a congressman called for a global ban on all encryption software that failed to include a "backdoor" allowing government surveillance, and a senator tacked an amendment onto an appropriations bill that would make wiretapping considerably easier.

Privacy advocates and civil libertarians are perpetually on guard, but after Tuesday's deadly airline hijackings, they are faced with a new and potent enemy -- public fear. Will a Congress desperate to do something in response to the horrifying carnage sweep in a slew of unprecedented restrictions on personal freedoms? The outcry of protest has already begun.

"If we accept 'anti-terrorism' measures that do further damage to our Constitutional freedoms, that will have been a victory for terrorism," wrote open-source software advocate Eric Raymond in a widely circulated e-mail sent Tuesday, the day of the attacks.

Even as the corpses of hundreds of victims still lay in the flaming rubble of the Pentagon and World Trade Center, the co-founder of the Electronic Frontier Foundation, John Perry Barlow, sent a mass e-mail imploring Americans to stand up to the threats against their civil liberties that would likely be provoked by the attacks, rights which, he noted, "far more have died for over the last 225 years than died this morning."

Some might find such a callous body-count calculus to be in poor taste, but the immediate and noisy response from privacy advocates reveals a sincere sense that basic American freedoms will soon be under concerted attack. Suddenly every step forward made in recent years in the fight for public access to encryption and strict limits upon electronic surveillance seems about to be rolled back. And, according to some critics, there's not even any evidence that new controls or restrictions would actually be instrumental in preventing future terrorist plots. Instead, the current horror would simply provide cover for would-be Big Brothers.

"I fear that civil liberties opponents will use this tragedy to further their own agendas," said Len Sassaman, an Internet security expert and privacy advocate.

"I think now is the perfect opportunity for those who want to do more comprehensive information surveillance on citizens at large. This is a really good excuse to do them," said John Sebes, an information security consultant.

Already, the new requirements for airport security have elicited skeptical eyebrows; not because there's a putative constitutional right to curbside check-in, but because the critics don't believe that the suicidal hijackings would have been prevented by the new measures: "By mandating these new restrictions on boarding aircraft, we've only demonstrated that we're willing to make rules that make us feel secure, but don't provide real security, only additional inconvenience," said Sassaman.

Historically speaking, "extraordinary circumstances," such as a war, have resulted in the temporary suspension of some civil liberties. Two of the nation's most revered presidents, Abraham Lincoln and Franklin Roosevelt, restricted civil liberties during the Civil War and Second World War. So one might expect that in the wake of one of the most vicious attacks ever experienced on American soil the government might take strong measures in response. But what's worrying some privacy experts is that no one appears to be thinking in terms of "temporary" restrictions.

"I think it's unfortunate that we're not waiting to see what happened here before people start prescribing broad restrictions on our civil liberties," says Cindy Cohn, the legal director for the Electronic Frontier Foundation. "What we're seeing is broad-ranging suggestions, not temporary restrictions, for changes in the law. Those are much more worrying than some temporary restriction."

Next page: Will the destruction of the World Trade Center usher in a new era of fascism?