To the Point:

The dilemma: national security vs. individual rights

By William E. Scheuerman
UUP President

UUP has recently received a number of questions regarding new federal national security rules and their impact on faculty, librarians and other information specialists who may be asked to provide information on students and on basic constitutional rights.

A call to the American Association of University Professors (AAUP) reveals that we’re not the only ones getting inquiries. AAUP reports that many colleges and universities are raising questions and expressing concerns regarding the new rules and how to comply with them. So far, no one has a grasp on the full implications of the changes. Let me give you a short overview of the issues.

In response to the terrorist attacks of Sept. 11, President Bush signed into law a bill commonly known as the USA Patriot Act. The stated purpose of the law is “to deter and punish terrorist acts ... to enhance law enforcement investigatory tools, and for other purposes.” Clearly, in the wake of Sept. 11, the U.S. government needed to take actions to protect its citizens from future attacks. But the law grants broad new powers to government that leave room for abuse. It also puts new pressures for compliance on institutions of higher learning. In fact, higher ed institutions are now in the middle of conflicts among students’ rights, an individual’s right to privacy and free speech, and the national security needs of the political state.

AAUP is analyzing the complex new law. Using this short analysis as a springboard, here are some facts we need to know and some issues we should think about: One section of the law amends the Family Education Rights and Privacy Act of 1974 (FERPA) by lowering the standard that protects students’ records from unauthorized disclosure. According to counsel for AAUP, the standard to gain access to private records, in effect, has been reduced from one of “probable cause” to that of “reasonable suspicion.” There is a long legal history of probable cause and law enforcement agencies know the rigorous test they must meet to conform to this standard. The same cannot be said about reasonable suspicion. This vague concept gives government broad new powers to pry into an individual’s private life almost at whim. However necessary the information gathering is to our national security, a process guided by a loose standard such as “reasonable suspicion” is certainly worrisome. But it gets even more troublesome. Institutions that turn over private records to the government do not have to notify the student or parent, nor do they have to keep a record of such disclosures. Should institutions of higher education somehow be challenged for granting disclosures, the Patriot Act gives them immunity from liability. Finally, while many provisions of the Patriot Act have sunset restrictions, FERPA amendments will not sunset.

The Patriot Act amendment to the Foreign Intelligence Surveillance Act of 1978 (FISA) is likely to have an impact on college campuses. This amendment expands the power of FISA to allow investigators to gather business records from any person, including bookstores, university libraries and Internet service providers. The act also has a “gag order” prohibiting the record keeper from disclosing the request for information to anyone “other than those persons necessary to produce the tangible things under this section.” This makes it almost impossible to monitor the number of searches conducted and the way in which they are conducted. The AAUP suggests that faculty — particularly academic librarians — concerned about complying with the law should review institutional confidentiality policies and chain-of-command policies in anticipation of FISA requests.

There’s no question that a government has the right to protect itself. That’s why democracies such as the United States always have a conflict — sometimes real, often potential — between an individual’s rights and the power of the political state. Many of us know that the tension between state power and individual rights is usually governed by some escape clause such as the “clear and present danger” exception to free speech. But these escape valves also mean, as the political theorist Franz Neumann once put it, that constitutional means cannot effectively eliminate state power. Put more bluntly, in a time when national security concerns are at the top of a nation’s political agenda, an individual’s constitutional rights may wind up being subordinated to the national security needs of the political state. This is not an abstract academic issue these days. There’s a lot at stake here and we must remain vigilant.