Le Grand Frère is Watching You

Most of us do not walk around wearing bulletproof vests.

They’re expensive, bulky and impractical — except in high-risk situations. Besides, even if there were a need, unless some celebrity (often famous for no other accomplishment than the fact of being famous) starts wearing one publicly, you’ll never convince young people to wear them.

On the other hand, whether because of public information campaigns or state laws, the use of bicycle helmets for children under 17 has reduced head injuries and saved lives.

It all boils down to striking a balance between practicality and safety.

Since 9/11, this balancing act has been playing out on a global scale. According to a report in The Wall Street Journal in 2008 — before Edward Snowden would become a household name — Mike McConnel, then U.S. director of national intelligence and former director of the National Security Administration (NSA) proposed a bold plan calling for the government to “have the ability to read all the information crossing the internet in the United States in order to protect it from abuse.”

Americans have a tradition of turning outlaws into folk heroes. That attitude had a lot to do with the fact that such outlaws as Jesse James robbed from the banks and railroads — who were perceived as extorting from the little guy. Never mind whether he did so or not, the old folk song says Jesse “stole from the rich and gave to the poor.”

And, says The Wall Street Journal, “Since unveiling the top-secret information in the U.K.’s Guardian newspaper … Mr. Snowden has been heralded as a free-speech hero by some and decried by others as a high-risk traitor.”

But the stakes in the game of Snowden’s bad-boy exploits are much higher than a train robbery. Depending on your take, Snowden may have put the entire nation at risk.

In an interview with the Journal in 2014, McConnell said, “Snowden has compromised more capability than any spy in U.S. history. And this will have impact on our ability to do our mission for the next 20 to 30 years.”

When it came to light in 2013 that the National Security Agency swept up — and in some cases recorded — 70.3 million French telephone calls and emails in one 30-day period, the French were outraged. Calling the practice “totally unacceptable,” an indignant French government demanded an explanation and summoned U.S. Ambassador Charles Rivkin for answers.

In 1890, Samuel Warren and Louis Brandeis wrote an article in the Harvard Law Review, “The Right to Privacy,” in which they cited an 1868 law, saying, “The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.”

But “Ce qui est bon pour l’oie doit au moins être bon pour le jars — what’s good for the goose is good for the gander.”

The recent massacre at the offices of Charlie Hebdo magazine in Paris — and the failed copycat attack in Texas — have put the cyber spotlight on French security efforts.

France’s lower house of Parliament has approved a bill aimed at legalizing broad surveillance of terrorism suspects that has drawn an outcry from advocates of civil liberties.

The bill was passed with bipartisan support Tuesday, with 438 votes in favor and 86 against. The new law would entitle intelligence services to place cameras and recording devices in suspects’ homes without prior authorization from a judge.

One of the most controversial measures would force communication and internet firms to allow intelligence services to install electronic “lock-boxes” to record metadata from all internet users in France. The metadata would then be subject to algorithmic analysis for potentially suspicious behavior.

Is this an unconscionable attack on personal freedom and privacy? Or is it an urgent necessity to protect the country?

Security expert Bruce Schneier says the choice between privacy and security is a false dichotomy.

“There is no security without privacy. And liberty requires both security and privacy. The famous quote attributed to Benjamin Franklin reads: ‘Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.’”

But, as in any false dichotomy, it’s not an either-or choice. In U.S. law, there is a “fruit of the poisonous tree” doctrine. Material gathered through illegal search is inadmissible in court. France must balance their security needs with strict guidelines about how information from cyber-surveillance may be used. And, as in the U.S., there should be a judge overseeing the process.

Moreover, if prosecutors know that they can only use the information to prevent and prosecute terrorists — with stiff penalties for any officials who leak any information — it is possible to have security together with liberté, égalité, fraternité.