more on Privacy and 9/11

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Thu, 01 Jan 2004 13:21:11 -0600
From: Benjamin Kuipers <kuipers () cs utexas edu>
Subject: Re: [IP] Privacy and 9/11
X-Sender: kuipers () mailbox cs utexas edu
To: dave () farber net, "sbaker () steptoe com" <sbaker () steptoe com>

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 () steptoe com" <sbaker () steptoe com>
> Subject: Privacy and 9/11
> To: "'dave () farber net'" <dave () farber net>
>
> 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 () cs utexas edu
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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