“The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded.” -Judge Learned Hand; Address at “I am an American” Day, Central Park, New York, May 21, 1944
Yesterday marked the 15th anniversary of 9/11, one of the saddest, darkest, most horrific days in history. Just one day before, on Monday, September 10, 2001, the FBI stated at a congressional briefing that the most imminent domestic terrorism threat was from….. animal-rights activists. At 8:46 a.m. the next day, our world changed in an instant. Since then, radical jihadist terrorism by the self-proclaimed Islamic State and those inspired by the Islamic State has become the paramount threat to our way of life. Over the last decade, there have been, on average, more than 10,000 terrorist attacks per year, causing an average of more than 15,000 deaths per year. While most of these attacks have been in the Middle East, America and the rest of the world are faced, more than ever, with the challenge of terrorism that is carried out by lone wolves or small groups that could happen anywhere at any time. As Steven Brill notes in Are We Safer? in this month’s Atlantic magazine, “Our defenses are far stronger, but what we have to defend against has outpaced our progress.”
Richard Haass, the President of the Council of Foreign Relations, recently noted, “Terrorism will happen sometimes despite our best efforts. This argues for resilience in addition to all else. This may require some compromise on privacy for individuals in order to promote collective security, but this is a price worth paying as the threat to democracy would quickly become far greater if existential terrorism were to become a reality.”
Not everyone agrees with my friend Richard that some compromise on privacy is a price worth paying. We addressed this very issue last week at our C|M|Law Transformative Dialogues Series. The forum, Cell Phones, Terrorism, and Privacy: Can the Government Force Apple to Unlock Your IPhone?, was moderated by Professor Jonathan Witmer-Rich. Our very well-attended forum was sponsored by the Federal Bar Association, American Constitution Society, and by our C|M|Law Center for Cybersecurity and Privacy Protection led by Professor Candice Hoke and Professor Brian Ray. Speakers included Judge Dan Polster of the U.S. District Court for the Northern District of Ohio, who teaches a course on Mediation as a member of our C|M|Law Adjunct Faculty, and Steve Dettlebach, former US Attorney for the Northern District of Ohio, and a partner at BakerHostetler, a long-time generous supporter of C|M|Law.
FBI Director James Comey has noted that the tension between security and privacy “should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
As technology outpaces the law, C|M|Law intends to continue to be at the forefront of this critical debate about one of the most defining issues of our time - reconciling the imperatives of security, safety, freedom, and privacy in the age of post-9/11 terrorism.
Lee
Lee Fisher
Interim Dean and Visiting Professor of Law
Cleveland State University
lee.fishernull@csuohio.nulledu