Dangerous Crossings

Slate's blog on legal issues.
June 9 2008 9:46 AM

Dangerous Crossings

Today's Wall Street Journal carries an interesting article ($) about the string of senior corporate officials recently detained while entering the United States.  European officials are upset over what they perceive to be a broadening of American police powers in the context of the war on terrorism—and the use of these powers against European citizens. The Journal reports:

In what has become a longstanding charge that the U.S. isn't upholding European privacy standards in trans-Atlantic matters, European civil-liberties groups and government officials have expressed misgivings over rules instituted after the Sept. 11, 2001, terror attacks that require airlines to submit the names of passengers heading to the U.S.

The names are checked against watch lists maintained by government-security agencies. The process was enhanced to prevent terrorists from entering the country, but also aids law-enforcement agents working on criminal investigations. Federal agents who want to question a traveler can use government databases to learn when a potential target is entering the country.

Fears about the U.S. use of this data were rekindled in recent weeks after executives and employees from defense contractor BAE Systems PLC and Swiss bank UBS  AG, were briefly detained by federal investigators related to separate bribery and tax probes.

... Stewart Baker, the DHS's assistant secretary for policy, defends U.S. privacy protections and in particular its collection of passenger data. "It is unfair to assume that this information originally was gathered only for antiterrorism purposes, or that it is being misused if it is used in criminal investigations," he said.

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I had two reactions to this story and the earlier news about these corporate arrests. The first was that the system seems to be working. According to the 9/11 Commission report , various U.S. databases contained negative information on roughly half of the 9/11 hijackers—yet all were allowed to fly. Today, one agency conducting an investigation is able to coordinate with another agency and flag a specific individual for detention and/or questioning. Setting aside all of the many problems with false positives, overreaching investigations, and the other important issues of due process here, I think this represents a quantum leap forward for law enforcement.

Second, and more broadly, I think this illustrates the extent of what Jack and others call the " national surveillance state " and the total inability of a citizen to avoid the state's surveillance if he/she wants to live a modern life. If you want to travel, use mass transit, enter a public building, use a public road, or use global communications, then you effectively must submit to some level of state surveillance. In practical terms, Fourth Amendment carve-outs like the "regulatory exception" and the "consent exception" now swallow the rule, because no modern person can live without submitting to this regime.