Civil Liberties After Boston

Richard Epstein

In the aftermath of the terrorist bombing—no lesser word will do—at the Boston Marathon, a major debate has broken out over the proper law enforcement procedures in two key areas: general surveillance and targeted searches. Many insist that a general right to privacy should limit the first, and that concern with racial and ethnic profiling should limit the second. Both of these overinflated concerns should be stoutly resisted.

The task of unearthing terrorist activities is like looking for a needle in the haystack. Even the best system of oversight and surveillance will turn up an extraordinarily high percentage of false positives, for the simple reason that the odds of any given lead providing useful information, although hard to estimate, may be very small. It takes, therefore, a very large payoff indeed to justify government action in those cases, which is why police surveillance and monitoring should receive high priority only in cases where the risk justifies the large public expenditures and the serious intrusions on privacy of those targeted individuals. At this point, the questions arise of what kind of surveillance should be used, and when and how law enforcement officials can target particular individuals.

The Way Forward on Surveillance

The Tsarnaev brothers’ attack at the Boston Marathon has brought forth an insistent public call for an increase in surveillance to detect suspicious activities before it is too late. To be sure, there are always technical difficulties in using surveillance devices. But any objection on that ground should be treated solely as means-ends questions, which can in large measure be answered by improved software in such key areas as facial recognition detection. The moral, social, and constitutional objections are sadly misplaced.

Yet, post bombing, intense political opposition has arisen in Massachusetts over the wider use of drones and other surveillance devices at next year’s Boston Maraton. Republican Sen. Robert Hedlund of the Massachusetts Legislature has sponsored restrictive legislation on drones with two key provisions. First, the legislation would prohibit the generalized use of drones in Boston, without the explicit prior approval of local governments, including the Boston City Council. Second, the legislation would “prohibit data collection about lawful peaceful activity,” which in turn would be backed up by public disclosure of drone use.

Hedland’s stated rationale runs as follows:

It’s not surprising that you have law enforcement agencies rushing out to use [the Boston bombing and subsequent manhunt] as pretext to secure additional powers but I think we have to maintain perspective and realize that civil liberties and the protections we’re granted under the Constitution and our rights to privacy, to a degree, are nonnegotiable. . .

You don’t want to let a couple of young punks beat us and allow our civil liberties to be completely eroded. I don’t fall into the trap that, because of the hysteria, we need to kiss our civil liberties away.

Hedlund is dead wrong here—and this is from a writer whose entire career has been devoted to imposing workable and principled limitations on government power.

First, the essential task of government is to preserve the life, liberty, and property of all individuals within its jurisdiction against their forcible destruction by other individuals. Second, a system of ex post (after the fact) criminal punishments forms at best only one part of a coherent and comprehensive strategy.

Compensation after the fact from terrorists is rarely, if ever, available. And even if it should magically materialize, it does not bring dead people back to life or heal the wounded. Criminal sanctions will not deter suicide bombers, nor can they be meted out in proportion to the mayhem that these people cause. Major ex ante (before the fact) precautions are imperative to stop the endless loss of life and limb that ex post sanctions cannot deter.

Nor is there any “pretext” at work in insisting on greater deterrence. It is easy to pooh pooh a major social threat like terrorism by reducing it to the conduct of “young punks,” the very people most likely to engage in violent activity.

Unfortunately, Hedlund compounds his initial error with two further mistakes. His first is constitutional, with the false claim that our rights of privacy under the Constitution are “nonnegotiable.” Fortunately, no provision of the United States Constitution requires this rigid and destructive point of view.

The basic command of the Fourth Amendment says that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .” For these purposes, the operative term is “unreasonable,” which, in light of the weighty interests on all sides of the dispute, requires some public judgment that compares the risks of inaction with those of excessive action. This unavoidable balancing process makes it foolish to elevate privacy—itself a complex notion—to that “nonnegotiable” status under a Constitution that also values the protection of life, liberty, and property.

Second, the last thing needed in these difficult circumstances is a squeamishness about aggressive government action. It is wholly unwise to think that we can turn surveillance devices on and off with the flip of a switch, as Hedlund proposes, and still get the information we need. The correct approach is to do exactly what Hedlund would stop: collect troves of information about the conduct of people in public places, which can then be stored for future use.

The key protection of civil liberties lies in the restricted access and use of that information. Unauthorized use is subject to severe penalties and should be invoked to allow for the full collection of the relevant information. Indeed, similar activities have to take place in monitoring the Internet use of suspected terrorists—and similar constraints must apply. The information can be collected and reviewed for limited law enforcement purposes, so long as its unauthorized release or use is subject to heavy criminal sanctions.

One great advantage of this comprehensive approach to surveillance in public places is that it avoids the risk that the surveillance will be conducted in a discriminatory fashion. The collection of information covers everybody who comes to public places. Yet once the information gathered reveals some potential targets, it then justifies closer surveillance of key individuals who can be singled out by their past activities. As the evidence gets stronger, so too does the case for more aggressive law enforcement actions. Whenever possible, these enhanced government activities should be subject to some kind of independent oversight, similar to the surveillance warrants of the FISAcourts, which deal with the wiretaps that are in place today.

Reasonable Suspicion and the Terry Stop

The need for expedited action also applies to individual decisions of law enforcement personnel operating on suspicion, where the immediacy of the situation makes it difficult, if not impossible, to introduce an added layer of judicial protection.

As far back as 1969, the United States Supreme Court, speaking through Chief Justice Earl Warren in Terry v. Ohio, held, after much handwringing, that a police officer did not have to show probable cause in order to stop and frisk a person on public streets. Reasonable suspicion that unlawful activity might happen was all that was needed to justify what are now commonly called “Terry stops.” Justice John Marshall Harlan tightened the noose still further by noting that whenever the police had enough reason to stop a person, the right to frisking him followed “automatically” given the ever-present risk that the party stopped might be carrying a concealed weapon.

This decision has generated many complaints about racial profiling, an issue that the Warren Court was well aware of at the time. There is no reason to sugarcoat the painful choice. These frisks are honest-to-goodness searches and they can be highly intrusive, covering even intimate body parts where weapons could be concealed. They are also more likely to be conducted in high-crime areas with a disproportionate number of young African-American males. No one can deny the unhappy fact that a huge number of erroneous searches will take place, for which there is, after the fact, no effective remedy at all. Unsuccessful searches yield no evidence that could be rendered inadmissible at trial.

Yet there are no sensible alternatives to the Terry rule. It surely makes no sense to stop and frisk a proportionate number of white males for no reason. In addition, it is virtually impossible to construct an intelligent system of ex post compensation to redress the large number of low-level harms that undoubtedly occurred when an innocent person was frisked.

Terry was unusually candid in recognizing that it chose the best of a bad lot, by allowing substantial errors in order to protect against yet greater losses. The Terry court further hedged its bets by announcing that its ruling applied only to this particular case. But history has not worked out that way. Today reasonable suspicion virtually always justifies the search and the frisk that follows.

Clearly, the stakes on ethnic profiling are higher than ever after the Boston Marathon—which makes it all the more important to keep the law in focus. Jonathan Chait recently wrote a short piece in New York Magazine entitled: “Profiles in Profiling: From the appalling New York Post to the rest of us.” He observed:

The Muslim world has certainly produced more than its share of terrorists. But there is a conceptual fallacy at the root of the nativist paranoia the Post (and other elements of the Murdoch media) have eagerly exploited: One cannot infer from the fact that many terrorists are Muslims the conclusion that many Muslims are terrorists.

No one should offer any defense of the irresponsible journalistic sensationalism that Chait rightly attributes to the Post. But the defenders of increased surveillance are not making the crude leap of logic with which they are charged. Everyone knows that two propositions are all too true: First, the vast majority of individuals with Muslim background are not terrorists, and, second, a disproportionate number of terrorists are Muslim. It is that last fact that drives the need for further surveillance, notwithstanding the high error rate captured in the first observation.

Indeed, it seems as though the FBI had received intelligence from Russian authorities that Zubeidat Tsarnaeva, the mother of the Tsarnaev brothers, was herself a potential terrorist. With that, any doubts about Russian intelligence or the motivations of the brothers falls by the wayside. Law enforcement officials must follow such leads to their bitter end in dealing with the prevention and deterrence of terrorist activities. The quicker public officials shed their reluctance to move decisively in these areas, the safer we all shall be.