Privacy vs Security: Navigating a Fundamental Tension in MAGA America
The normal conflicts between privacy and security has become particularly salient given the Trump Administration’s current disregard for the rule of law.
If there was a major calamity or terrorist attack, on the order of 9/11 or even the Oklahoma City bombing, could the current administration in Washington use that as a rationale for invoking the Insurrection Act, declaring martial law, suspending habeas corpus, jailing up so-called “enemies” even in the absence of of related evidence—and even suspending elections? And, if so, would most of America accept this as necessary for their security? I suspect the answer to both would be yes.
In modern society, we face a critical challenge: how to protect individual privacy and liberty while maintaining collective security. This tension represents one of the most significant policy dilemmas of our digital age, requiring thoughtful consideration of competing values and interests.
The conflict is far more than academic. First, there are laws and regulations that have attempted to balance the two, as events, such as 9/11, have demonstrated, the times and needs evolve. Second, given the current administration in the United States, there are legitimate concerns about the agenda that might favor a strong tilt to security-first over individual rights to privacy.
Even under the most favorable circumstances, those two values are often not equally weighted by society, and even more so at the individual level. Recall that in Maslow’s hierarchy of needs, safety—the need for order, predictability, and control in our lives—is second only to physiological needs, such as air, food, and shelter, for understanding the psychology of motivation.
Concern about privacy, as well as liberty or democracy, on the other hand, is a comparative luxury. Yes, the argument can be made that privacy may be subsumed by safety: feeling safe from intrusion or surveillance. Protecting one's personal space and possessions, as well as one’s digital data and online activities, may be lumped in with safety.
However, a strong case can be made that when confronted with a choice between personal safety and sacrificing some privacy, the latter may be easier to jettison. Only when one feels secure does privacy become less about immediate physical safety and more about enabling autonomy, personal growth, intellectual freedom, and the development of self.
The Privacy Imperative
Privacy stands as a foundational human right, essential to personal autonomy and dignity. It enables individuals to maintain boundaries between their personal lives and public scrutiny, fostering freedom of thought, expression, and self-determination. Privacy protection allows people to develop their identities without fear of judgment or discrimination.
In democratic societies, privacy serves as a bulwark against authoritarianism by limiting the government's power to monitor and control citizens. It creates spaces for dissent, political organization, and the free exchange of ideas—elements vital to healthy democratic discourse.
The Security Necessity
Simultaneously, governments bear responsibility for protecting their citizens from harm. National security threats, terrorism, organized crime, and cyber attacks present genuine dangers that can impact countless lives. Intelligence gathering and surveillance often provide critical tools for identifying and neutralizing these threats before they materialize.
In an interconnected world where threats can emerge rapidly, security agencies argue that access to data and communications enables them to detect patterns, connections, and warning signs that might otherwise remain invisible until it is too late.
Some surveys seem to conclude that Americans show a high degree of concern about privacy. However, most of the data involves questions about data privacy. Large majorities express concern about corporate and government gathering of their data and how it is used.
The public increasingly says they don’t understand what companies are doing with their data. Some 67% say they understand little to nothing about what companies are doing with their personal data, up from 59%.
Most believe they have little to no control over what companies or the government do with their data. While these shares have ticked down compared with 2019, vast majorities feel this way about data collected by companies (73%) and the government (79%).
Questions about security tend to devolve to narrow concerns about smartphones and the use of passwords, face recognition, data breaches and hacks, and mitigation such as two-factor recognition. And yet, when confronted with options, those concerns about data collection are often ignored. According to a Pew Research survey, only 18% say they read privacy policies before agreeing (or refusing to use) when signing up at many websites or installing a new app.
Americans are much more likely to say privacy policies are just something to get past than to consider these policies a meaningful part of their decision to use a product or service (69% vs. 27%).
However, when privacy is presented in a national security context, studies suggest that national security is often seen as more critical.
Pew Research Center surveys since the 9/11 terrorist attacks have generally shown that in the periods when high-profile cases related to privacy vs. security first arise, majorities of adults favor a “security first” approach to these issues, while at the same time urging that dramatic sacrifices on civil liberties be avoided.
Thus, in this post, I am focusing on the personal safety aspect of security: ensuring that a terrorist does not carry a bomb aboard an aircraft, confidence that attending a concert will not expose you to the risk of a deranged shooter, and assurance that your child will come home from school safely every day. This, I propose, is in a different category than the security from a hack of cloud data or health records and that concerns about physical security, though less likely to effect any of us than a data breach of our phone, is far more motivating than the off chance of your data being used for nefarious ends.
How security concerns have impinged on privacy
Security descends the abstraction ladder to the specific following events that result in regulation and legislation aimed at preventing a repeat of the event, sort of closing the barn door after the horses have escaped, as well as to try to prevent the next batch of horses from fleeing.
Oklahoma City Bombing
Following the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995, killing 168 people. This attack heightened awareness of domestic terrorism and led to increased security measures at federal buildings and public spaces. Most of the recommendations that flowed from the vulnerability assessment ordered by President Clinton are invisible to us, such as perimeter barriers, hardening of building exteriors, and blast-resistant glazing for federal buildings. However, others could impinge on our privacy, such as visitor screening and closed-circuit video monitoring at many buildings.
Most of us accept such a reduction in privacy as minor and reasonable. However, it does mean that the government has additional information to track some of our comings and goings. That data could conceivably be used maliciously and for unsavory purposes in the wrong hands.
September 11, 2001
The aftermath of the terrorist attacks on the World Trade Center and the Pentagon led to sweeping changes, including the creation of the Department of Homeland Security, the passage of the USA PATRIOT Act, and a fundamental reorganization of federal security agencies.
The Patriot Act has significantly impacted personal privacy by expanding government surveillance powers and reducing existing privacy protections, particularly in relation to communications and searches. It allows for broader access to personal records held by third parties, secret searches, and the expansion of intelligence exceptions in wiretap law, often without requiring probable cause. Specifically, the Patriot Act allows law enforcement to obtain records from doctors, libraries, bookstores, and internet service providers, in the absence of a warrant in some cases.
Boston Marathon Bombing
One of the many outcomes of the response to the Boston Marathon bombing in 2013 is the vastly increased funding for and use of surveillance cameras. Those that existed in 2013 were instrumental in identifying the perpetrators. However, it has accelerated the movement toward what some critics have dubbed a “total surveillance society.”
Although images from cameras installed by non-governmental entities played a central role in the investigation of the Boston attack, those operated by law enforcement agencies pose a greater potential threat to privacy because they are likely to be part of a system that integrates cameras with other surveillance tools, such as drones, automatic license plate readers, and monitoring of phones and email.
Points of Tension
Of course, these are only some of the more recent events and outcomes. We could look back more than 100 years to the Espionage Act of 1917, the Palmer Raids during the Red Scare, and the establishment of the FBI’s national fingerprint database, each reflecting periods when security concerns led to expanded government powers and new security practices.
This conflict between privacy and security manifests in several key areas:
Data Collection: The breadth and depth of information gathered by security agencies directly impact both privacy and security outcomes.
Oversight and Accountability: Questions arise about who monitors surveillance programs and how transparent these programs should be.
Technological Capabilities: As surveillance technologies advance, the potential for both protection and abuse increases.
Concerns in the current political environment
Although the tension between privacy and security reflects deeper questions about the proper relationship between individuals and the state in democratic societies, it has become particularly salient given the Trump administration’s current disregard for the rule of law and its attempt to use obscure laws to enact the deportation of undocumented immigrants without recourse. It has relied on the Alien Enemies Act of 1798, which grants the President authority to detain or deport non-U.S. citizens of enemy countries during times of war or when an invasion or predatory incursion is deemed to be underway. It also allows for the arrest, restraint, and removal of individuals based on their nationality, without a court hearing. But we are not at war.
In normal times, we would expect the Justice Department to push back on a President’s attempt at what would seem to be such a transparent misuse of this law. But we know that these are not normal times. Indeed, the Justice Department is taking the lead in trying to defend the administration’s position. That so far they have been met with resistance from the lower courts is a hopeful sign, but it remains for the Supreme Court to make a substantial ruling on its use.
Trump has also expressed an interest in employing the Insurrection Act of 1807 as the basis for using the U.S. military to perform law-enforcement duties along the Southern border. This would allow him to bypass the Posse Comitatus Act of 1878. which prevents the federal military from acting as a police force unless there is a clear grant of power from Congress.
The history of responding to major events that promote concerns of security over privacy, such as 9/11, combined with the propensity of the Trump administration to look for avenues for expanding the power of the executive to act arbitrarily and with few checks against individuals, suggests that such an event, should it occur, could be employed to restrict civil liberties severly.1
If Maslow’s hierarchy of needs theory is close to reflecting the actual psychology of much of our society, then there would be good reason to foresee how Trump and his enablers could gain widespread acceptance for troops in the streets, rounding up “perpetrators” and anyone the Trump FBI wants to target, limiting free press, even using the “emergency” as a justification for suspending elections in exchange for the security he would promise. If you’re scared enough, concerns for self-esteem or belonging, and privacy, could be seen as a rational trade-off.
In the world we lived in until January, we could understand that the balance between privacy and security was not a zero-sum game where one value must overwhelm the other. Ordinarily, a society that respects individual rights while maintaining safety creates the conditions for both freedom and security to flourish.
Ultimately, the balance we strike reflects our values as a society. By engaging thoughtfully with these difficult questions, we can develop approaches that protect both our privacy and our security, recognizing that each is essential to human flourishing in the modern world. But that requires normal times and the rule of law. It’s hard to admit that we can’t take that for granted today.
In my darkest moments, I disappoint my better nature by being able to envision a false flag operation by some extreme MAGA troops to create such a major event that could become an excuse for the imposition of the Insurrection Act.
I see this the subject is really a matter of use... who, how and why...Using a gun, as an example, can be used for good or evil.......It depends who is using it, why and how.
I think most of us accepted the changes made after 9-11. The Patriot Act ( as a Realtor) was often a pain in the a**...delaying mortgages on settlement days....However, it was a safety issue that rarely affected others.. So there seemed to be little complaining.
To be totally honest, anything that the name Trump is attached to, makes me leery of the how and why. Hes been ignoring laws, thumbing his nose at the courts and has only shown authoritarian tendencies. .....
And Jeffrey Baron...I have a headache too!!
This was a typically well handled survey of a topic that has become too broadly ignored by other commentators as they merely let off steam at the administration.