9/11, Law and Technology

Many analogies have been made of the events of September 11 to Pearl Harbor. We can argue about the accuracy or validity of that analogy. What can be said with some degree of certainty, however, is that like Pearl Harbor and our entry into World War II, the events of September 11 and the subsequent campaign to eradicate terrorism will have far-reaching effects socially, economically, legally, and technologically.

Whatever the long-term effects will be, the confluence of science, technology, and the law will be at the forefront of change. The Internet, telecommunications devices and biotechnology are among the tools used in the September 11th attacks as well as their prevention, investigation, and retribution. These tools interact with our Constitution and laws in many ways. Future technology and the law must adapt to try to come to terms with issues such as the use of military tribunals to try non-citizens suspected of terrorist attacks. How these forces will embed themselves in the social fabric may not be seen for some time.

As in the aftermath of Pearl Harbor, we are now thrust into a period of uncertainty about how our world will change. During this period of uncertainty, we will have to examine the various aspects of our lives impacted by recent events. For instance, the attacks spurred debate on what the proper balance between civil liberties and national security should be. At least initially, that balance will be struck along the lines dictated by the USA Patriot Act of 2001 (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism), the anti-terrorism legislation that is one of Congress' initial steps to respond to the attacks. Among the tools the Act gives to federal authorities are pen register warrants or a roving wire tap, warrants to seize voice mail messages of suspected terrorists, and nationwide search warrants to internet service providers requiring them to hand over email messages sent to and received by suspected terrorists. The Attorney General has vowed to start using these powers immediately.

The Act sunsets in 2005. Thus, the debate over the balance of civil liberties and security will continue not only as this law is implemented but when Congress revisits the Act. Only then will we know whether the Act was more of a war-time measure or a permanent part of the legal landscape.

The civil liberties – security debate will play itself out again and again over discrete issues. For example, one criticism of our nation's preparedness was the inability of various federal agencies to share information with each other. This raises the following question: to what extent can personal communications intercepted in one country be turned over to authorities in another?

There are many other questions that need to be answered, indeed many questions to be asked. The Michigan Telecommunications and Technology Law Review, as one of the leading legal journals on science, technology and the law will continue its mission to provide a forum to discuss such questions. To that end, the MTTLR encourages interested parties to be active participants in the many discussions that have already begun and to submit their thoughts and writings to the MTTLR during these very important times.

Daniel S. Liebman, MTTLR