Support for Free Speech Is Not Support for More Surveillance

A civil libertarian and free-speech absolutist’s concern about the Charlie Hedbo demonstrations

Mass demonstrations of solidarity in favor of free speech and against the Charlie Hebdo killings are understandable, but they could inadvertently give cover to actions that subvert the very liberties the protesters cherish. Legitimate public outrage should not be channeled into declaring or escalating wars on Islamic (or any other kind of) terror. Democracies should coolly rely on existing tools and procedures against criminal conspiracies.

The Paris killings certainly have special features. They weren’t an episodic rampage like the 2002 Beltway shootings by two snipers. The murderers, like the antiabortionist killers of doctors egged on by a Catholic priest David Trosch, were religious fanatics. But unlike doctor killers – or the cultists who spewed Sarin gas in the Tokyo subway – this kind of carnage isn’t local. Islamic fanaticism, like the barbarity of many Christian conquistadors in centuries past, traverses continents. And the targets aren’t just infidels: like the pro-slavery mob that killed the abolitionist editor of the Alton Observer in 1837, or the union organizers who dynamited the LA Times building in 1910, the Parisian killers had free speech and a free press in their gun sights.

The killings also evoke a stronger visceral reaction than, say, Boko Haram’s massacres in Nigeria. People naturally care more about their own. Westerners were more moved by the 2004 Tsunami that claimed about 200,000 lives, because the toll included about 9000 Western tourists, than by the 1976 earthquake in China, which claimed tens of thousands more. The killings of eleven Charlie Hebdo employees has similarly agitated journalists more than did the tenfold larger number of government workers blown up by Timothy McVeigh and Terry Nichols in Oklahoma City in 1995.

Yet, even if the killings weren’t run-of-the-mill crimes, what advances could protests propel? Homicidal zealots are likely to be elated, not dismayed, by the condemnation of non-believers. Moderate Muslim leaders or preachers might be shamed into stronger denunciations of Islamic terrorists but such denunciations are also unlikely to have much effect. Even harsh reprisals inflicted on neighbors and relatives have not ended suicide attacks by Palestinians on Israelis. Moreover such collective punishment would now be unthinkable in the US and in West European democracies – mass internments of blameless Japanese-Americans ended with the Second World War.

As France begins to craft their response to the attacks, Western governments could turn to a form of profiling that Edmund Phelps called “statistical discrimination.” This wouldn’t have to be done as crudely as the police “profiling” of African-Americans: only Muslims with statistically high risk factors could be singled out. Some of this is already done: it is no doubt harder for a Yemeni Muslim to get a visa to the US than say a British Muslim (Yusuf Islam, formerly Cat Stevens, apart). Likewise, US citizens who visit Mosul in ISIS-controlled Iraq presumably attract more attention than if they visit Petra in Jordan. Moreover, statistical discrimination has become routine in the financial sector. Many lenders rely exclusively on statistical models and credit scores to make car and student loans, and the government virtually mandates models for mortgages. Why not do this more broadly and systematically to catch terrorists?

Alas, statistical discrimination often does not work as advertised. False positives and negatives of model-based lending have become a menace as I have previously argued. Blind reliance on credit scores impels lenders to extend $100,000 loans to eighteen year-olds (who happen to have perfect credit scores because they have made timely payments on debt they have carried for a very short time).

The practical problems of ramping up statistical discrimination to detect would be Islamic terrorists are even more daunting. Terrorism is hard to model; there are few terrorist acts and each act has its own idiosyncrasies. Critical variables cannot be observed. Islamic terrorists are by definition Muslim but in civilized societies we don’t tag people by their religions and inferences drawn from names and looks can be misleading. I’ve been mistaken for an Arab when I’m a (Hindu) native of India. And changing the profile of recruits can undermine models. Fanatics can be enlisted from anywhere. If Saudis or Yemenis are flagged for attention, terror networks can turn to Indonesians or native-born recruits.

Instead of relying on statistical predictions governments could (as France appears inclined to do) implement an across the board increase in surveillance. But it is difficult to see how much more could be done on this front when we are likely well past the point of diminishing returns. The US and other governments have given security agencies vast resources and powers to combat terrorism, especially after 9/11. This is on top of a large expansion of prosecutions that have nothing to do with terrorism that has left nearly a third of all adult Americans with an arrest or conviction record. And efficiency suffers when government or private monopolies are given more power, resources, and responsibilities. The problem of achieving less with more tends to be especially acute when independent oversight is weak. And, of all government agencies, security agencies are the most free of oversight and accountability and able to commandeer money and powers with the fewest questions.

Worst of all, increases in targeted or mass surveillance undermine basic principles of a free society. While Muslims are most exposed, the rights and freedoms of all citizens are in jeopardy, including the right to be treated equally under the law, the presumption of innocence, the right to be tried by a jury of peers rather than by statistical models, and the freedom from unreasonable and warrantless searches. Ironically, even the freedom of the press to investigate and report on infringements of these rights becomes a collateral casualty.

Like it or not, following the rules to steadfastly and dispassionately fight crime offers the best protection of our liberties. If harsh repression and unchecked police powers worked, Russia would have long ago ended Chechen terrorism and China would be free of attacks by Uighurs. A government that polices with restraint polices best.

Yet, the response of governments when fanatics succeed in perpetrating high-profile crimes is almost always to do more. The Norwegian reaction to mass killings by Anders Breivik was commendably restrained. But the government did institute sweeping rules against the planning of terrorist acts which according to Olso civil liberties lawyer Jon Wessel-Aas, “allow police to initiate secret surveillance of individuals who have not yet even developed the intent of planning a future terror action.” Governments are influenced by an unfortunate asymmetry. Millions march and world leaders congregate in Paris to denounce the Charlie Hebdo killings. Who rallies against NSA spying?

Amar Bhide

Amar Bhide a professor at Tufts’ Fletcher School of Law and Diplomacy, is the author of A Call for Judgment: Sensible Finance for a Dynamic Economy and other books.