WATERVILLE — The complexities of personal privacy and national security are rooted in the constantly changing world of technology and online networking, the evolution of what privacy means and the considerable gap in how the legislative and judicial systems determine what is invasive, according to a Sunday afternoon panel of judges and privacy protection experts at Colby College.
The panel’s purpose was to bring together jurists, scholars and curious spectators to have a conversation about the struggle to find a proper balance between privacy and security.
The discussion between privacy and security has been magnified in the public light since the exposure of classified domestic surveillance by the National Security Agency, leaked in 2013 by former CIA employee and NSA contractor Edward Snowden, who is currently in asylum in Russia.
“I’d like to thank the NSA and Google, who are probably looking in during this panel,” said Dan Shea, director of the Goldfarb Center for Public Affairs and Civic Engagement.
The panel included U.S. District Judge Leonie M. Brinkema, President and Chief Executive of International Association of Privacy Professionals J. Trevor Hughes, University of North Carolina School of Law professor William P. Marshall and Associate Director of Electronic Privacy Information Center Ginger McCall.
“Privacy is not a new concept, it’s an ancient one,” said Hughes, who’s also a professor at the University of Maine School of Law. “As that concept has expanded, it’s been given all sorts of lives. Most recently, privacy has been given life in informational privacy, the concept that our data, the information about us, has value, and that in some way we need to protect it as it goes out to the marketplace and into society.”
The concept of national security versus personal privacy was a persistent thread in the conversation, with both viewpoints highlighted.
Marshall, the law professor at UNC, argued that while the government isn’t always excused for its actions, society needs to look at the issue from its point of view.
“We need to think about what’s at stake and ask why it is the government may act the way it does,” Marshall said, addressing the roughly 70 attendees. “I think it’s a mentality we can all understand that I’ll call the ânot on my watch’ mentality. It’s OK to think about abstract events of liberty and privacy, but if that’s going to lead to thousands of American citizens being killed on my watch, it’s not going to happen.
“It’s the reason every president looks 10 years older in every State of the Union address,” Marshall continued. “An incredible personal responsibility takes over when you assume that kind of office.”
McCall, who is director of the Electronic Privacy Information Center’s Open Government Project, questioned the basis behind stockpiling massive amounts of information on Americans in the name of security.
“Does the government have the right to consider each U.S. citizen a terrorist?” McCall said.
Through the work done with the privacy center, McCall is working to put statutory limits on data mining and collecting, arguing that even though technology has evolved to the point where consumers voluntarily provide personal information, people still expect privacy.
“Some people may find the tradeoff between privacy and convenience worthwhile or come to accept this diminution of privacy as inevitable,” McCall said. “I for one doubt people would accept without complaint the warrantless disclosure to the government of every website they’ve visited in the last week, month or year. I would not assume all information voluntarily disclosed to some member of the public for limited purpose is disentitled to Fourth Amendment protection.”
For junior government student and Skowhegan native Lucas Fortier, the panel discussion was informative and necessary, as there is no separating privacy and security, he said.
“I disagree that there is a total disconnect with privacy and security,” Fortier, 21, said. “There’s some compromise between the two. I can see where they’re coming from in that there’s a way to make security techniques less invasive, but it still comes down to compromise.”
The panel preceded the Morton A. Brody Distinguished Judicial Service Award Ceremony, with the biennial honor given to longtime Maine judge D. Brock Hornby. The accolade is bestowed upon an individual who embodies the same qualities of integrity, compassion, humanity and judicial craftsmanship as Brody did. Brody was a U.S. District Court judge and Colby professor who died in 2000.
“It’s the greatest accomplishment I can imagine once you read the criteria for the award,” Hornby said. “It’s also pretty daunting to live up to that for the rest of my professional life.
“I knew Brody well as a state and federal judge and grew to love him and what he stood for over the years,” Hornby added.
Hornby served as Maine’s first full-time U.S. Magistrate Judge from 1982 to 1988 before accepting an appointment from former Maine Gov. John McKernan in 1988 to become an associate justice of the Maine Supreme Judicial Court.
Hornby resigned in 1990 to accept an appointment by President George H.W. Bush to become the 13th federal judge for Maine. From 1996 to 2003, Hornby served as the chief judge of Maine.
Before receiving an honorary doctorate, Hornby took in the panel discussion. Working in the judicial system for over four decades, the topic intrigued Hornby, as the complexities of the constantly changing world of technology and what it means to privacy stymies the judicial system.
“As judges and lawyers, we build our lives based on history and precedence,” he said, “and when something changes quickly, it’s very difficult for both Congress and the courts to keep up.”