April 2008 The 1st Annual BCLT Privacy Lecture

Would You Rather be on Closed Circuit TV or in Jail? Trade-Offs Between Liberty and Privacy in the US and the UK

April 14, 2008

UC Berkeley Law School
Event held at the Bancroft Hotel

Co-sponsored by the Berkeley Center for Law and Technology (BCLT), with the Center for the Study of Law & Society, the Institute for Global Challenges and Law, and the Thelton E. Henderson Center for Social Justice.

BCLT presents its 2008 Privacy Lecture — featuring an address by David Cole, Professor of Law at Georgetown University Law Center — on the intersection between privacy and national security law.

Professor Cole is a regular contributor to the New York Review of Books, a commentator on National Public Radio’s All Things, the legal affairs correspondent for The Nation, and a volunteer staff attorney for the Center for Constitutional Rights. Cole is the author of three award-winning books. His most recent book, Less Safe, Less Free: Why America Is Losing the War on Terror, won the Palmer Civil Liberties Prize in 2007 for best book on national security and civil liberties. Professor Cole has received numerous awards for his human rights work.

Responses to Professor Cole’s 2008 BCLT Privacy Lecture will be made by David S. Kris, Esq. and Professor John Yoo. David S. Kris is a former Associate Deputy Attorney General and co-author of National Security Investigations and Prosecutions (2007). John Yoo is Professor of Law, U.C. Berkeley School of Law. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.

The moderator of the 2008 BCLT Privacy Lecture will be Paul M. Schwartz, Professor of Law, U.C. Berkeley School of Law, co-author of Information Privacy Law (2d ed. 2006), and author of numerous publications about privacy law.


Professor Cole’s Abstract for the 2008 BCLT Privacy lecture

In the first two years after 9/11, U.S. authorities detained over 5,000 foreign nationals in anti-terrorism preventive detention measures. Today, all have been released, and not one stands convicted of a terrorist offense. In the United Kingdom, by contrast, authorities rounded up far fewer suspects in the wake of September 11 or their own terrorist subway and bus bombings on July 7, 2005. At the same time, privacy protections in the UK appear to be substantially less robust than in the United States, as a matter of law and practice. Closed-circuit television cameras are ubiquitous, the police have been authorized to make suspicionless stop-and-frisks throughout London since 9/11, and wiretapping is subject to far less oversight than in the US. We often talk about the balance between liberty and security, but this comparison suggests that there may also be significant trade-offs between liberties. The less a government knows about where threats lie, the more likely it may be to conduct expansive sweeps and preventive detention in the face of a security threat. A comparison of the UK and US response to terrorism suggests that trade-offs between rights may themselves be as fraught, and as significant, as the trade-offs between rights and security.