This essay will examine the ethical dilemmas now facing the United States government because of the terrorist actions committed against the US on September 11, 2001. The US government is forced to make tough choices when drafting legislation to protect society from further attacks. In so doing there is a concern that greater limits will be placed on the personal freedom and privacy of citizens. This ethical dilemma will be examined using the Rule Utilitarian theory. A Kantian response to these arguments from both the Categorical Imperative Test and the Ends Test will be put forth. The essay concludes with an assessment of the better course of action. Namely, a marriage of the two positions must be adopted, and other factors must be considered in order to come up with a workable solution.

On September 11, 2001 armed terrorist boarded four jets in the United States, hijacked them, and managed to crash three jets into buildings. In so doing, all four planes were crashed, the World Trade Center in New York is destroyed, and the Pentagon in Washington DC is damaged. Over 6,000 people are feared dead. The events turned out to be the worst attack against the United States, on US soil, in American history. In the aftermath of the crisis, government officials and legislators are scrambling to come up with new laws and policies which will prevent such an attack in the future. In so doing, many ethical questions arise when it comes to placing limits on citizen privacy, in order to give law enforcement more powers to track down terrorists.

A rule-utilitarian thinks an act is correct if it is in compliance with a rule or larger set of rules, that when followed, lead to the greatest good for the greatest numbers, among alternatives. When facing a dilemma, alternatives are considered, and a course of action is taken based on options which satisfy conditions required of them by established rules, and in turn, whose outcomes produce the most good. When an action causes a conflict among two similar rules, an appeal to a higher rule, or one of more importance is made, in order to choose the best option. (Pojman, 112-4).

First of all, a rule utilitarian would be morally upset at the acts committed on September 11, 2001 for a number of reasons. A small number of radicals from the middle east are upset with US policy and culture. They take it upon themselves to commit violence against a large number of US citizens, and threaten the personal security of everyone in the Western World. The political goals of the terrorists do not justify the actions taken against everyone else in Western Society. Furthermore, a large number of high level rules were broken in committing their acts of murder. Likewise, there is an issue among those from the Middle East, those of Arab decent, and those of the Muslim faith in particular. Their culture and religion was taken over by a small group of fundamentalists, using the Muslim faith as an excuse for their political agenda and extreme views, and thus disrupting the greater good of Muslim-Western peace in the process. It is clear a rule utilitarian, from a purely utilitarian point of view would find no good in the attack against the US.

Looking at the rule utilitarian theory and applying it to the issue o citizen privacy, several options arise. Lawmakers are scrambling to find solutions and to take preventative actions against future attacks. Some options in the public discourse include limiting the privacy of Americans. There are a number of options under consideration. It would be beyond the scope of this paper to go into argumentative detail over each one. Therefore, several examples of commonly discussed security options are mentioned. A few target examples, such as electronic privacy will be discussed in more detail, applying the rule utilitarian theory.

Some options for increasing security in the aftermath of the terrorist attacks on the United States include more security at airports, to the detriment of convenience and timeliness of air transportation. The use of “profiling,” is an option. Profiling is where law enforcement gather a set of typical characteristics, either behavior patterns or demographic/physical characteristics of people, and assess their risk based on that. For example, if someone buys a one way ticket, pays with cash, and has no checked baggage, a “red flag” would appear, and that passenger would be interrogated. Furthermore, and more controversial, people of specified demographic or ethnic backgrounds would similarly be screened and singled out for more thorough inspection. This would inconvenience the few who are within the profile, yet expedite the screening of the masses. The result would be increased security, and faster check in times at airports. There will be a greater thoroughness in background checks for people who work with or near sensitive areas.

On the topic of using the Internet, many areas of privacy will be affected. Notably, authorities will want to have an easier time spying on people using the Internet, collecting covert information, and obtaining usage records. A sub issue is the use and public availability of encryption technology and anonymous Emailing. Such technology as it exists today enables someone to use military grade encryption to scramble up communications. Easily obtainable and cheep software can also mask someone from being detected online, via anonymous relay services and anonymous remaining of Email messages. Some in the US government want to severely restrict this, even to the detriment of Commerce and legitimate use.

Law enforcement wants more powers in general, to eavesdrop and tap conversations by phone. The most radical suggestions are to spot check people who appear to be suspicious, such as someone who’s credit card shows they have purchased materials which could be turned into weapons. This is an invasion of privacy and can lead to the interrogation of innocent people. For example, if a young man were to purchase a substantial amount of chemical fertilizer, then, later were to go to a hardware store and buy certain chemicals, then at a later date, rent a moving truck, the FBI could be alerted, and investigate him. Another scenario would see the FBI interrogating anyone who is a young man, who buys certain common every day household chemicals at a store, then rents a moving truck, but was born in the Middle East, and has an Arab name.

Keeping a central database of peoples electronic movements, and cross referencing them to other surveillance is an option which is also being considered. There is a benefit to society as a whole when society is protected from terrorism. However, there is a loss to society when any individual can be harmed by excessive security measures.

A rule utilitarian would approach the problem of increased security in an orderly way. Let us suppose that the lawmakers are considering a “Homeland Defense” bill before Congress. This bill will include all of the above mentioned items under consideration. Let us again suppose that these law makers are all rule utilitarian. The following paragraphs will explain their case for passing such a bill using rule utilitarian theory.

Using the model of cost benefit analysis, the lawmakers would come up with “pro’s” and “con’s” to every point. The utmost goal is to satisfy the greatest good for the greatest number. In this case, the greatest number is the whole population of the United States. The legislators must follow existing rules. These are the existing local, state, and federal statutes, and the Constitution of the United States. The most important, or over riding law, to all other rules, are the rules contained in the Constitution. In this bill there are two conflicting fundamental arguments. The first argument is the need for personal freedom, and the second is the need for national security.

The rule utilitarian would at first approach increased security with the utilitarian thought that the greatest good must be accommodated. Increased security would cut down on personal freedom, but not for everyone at one time. That is, given even the vast resources of the United States government and its agencies, it is impossible, using current technology, for “government agents” to check on everyone. Therefore, any extra powers enjoyed by law enforcement due to an increase in security, would be exercised by professionals who have reason to believe that they need to check someone out. Curtailing the use of powerful encryption software, as another example, would harm only the few who use it, but prevent a criminal or terrorist from using that technology to hide from law enforcement. Electronic transactions which rely on encryption technology may be weakened so that law enforcement can access them. This will not mean that all security would be eliminated, but that law enforcement would be able to gain access. With a warrant, law enforcement can conventionally obtain someone’s bank records anyway. Without going into technical detail, those who use harder forms of encryption, beyond that employed in the realm of Electronic Commerce, are a small minority. Those individuals would still be able to access strong encryption technology, only now, they may be required to register themselves, and explain to authorities how and why they are using such technology. Currently, high grade encryption is available to anyone in the United States, sometimes for free, and definitely without any questions asked.

A rule utilitarian would evaluate that increased security outweighs the small privacy concerns of the few. When comparing the two greater rules, that being the rule that privacy is important to all Americans, and the second rule, that national security is important to all Americans, a rule utilitarian must make a decision. On the issue of “profiling,” the right to civil liberties, and not being unfairly identified by physical characteristics is a strong one. However, that rule can be over ridden by the stronger rule that gives people the right to have security of person and be free from physical harm. Given this tragedy and the immediate safety concerns of the moment, a rule utilitarian would choose to override personal privacy in favor of national security, and pass tougher security measures.

A Kantian would have a slightly different reasoning and possibly varied response to that of a rule utilitarian. We first need to understand the Kantian theory. In general reason should be used to work out a set of moral principals. Reason should be based on a universal and binding set of goals that ought to be the right logical ones. There are two tests that can be applied. The Categorical Imperative Test says that someone must do what ought to be done. The Ends test looks at whether the ends justify the means, in that in reaching an objective, is a moral tenant violated (Pojman, 138-50).

Applying a Kantian view on the above law, crafted by rule-utilitarian, a Kantian applying the Categorical Imperative test would look at it in the following way. Considering the issue of personal and electronic privacy verses the issue of national security, which moral position ought to be the best in its own right. The pro’s and con’s would not be evaluated and considered in the same manner. Intrinsically, the right to privacy is needed, and the right to security is needed as well. However, the right to privacy is ongoing, and effects everyone all the time. It is an important goal. National security is ambiguous, especially when it comes to justifying the need to spy on people or to restrict certain technologies in order to bolster it. The actual treat to national security resulting in citizen privacy as it now is, especially, in the realm of electronic communications, is a low order value. It seems that those in law enforcement are using the issue of national security to curtail the right of privacy. Therefore, evaluating the two values themselves, privacy ought to be protected, despite the risks.

Applying the ends test, a key weakness in the rule utilitarian view is that personal privacy, a value onto itself, is being trampled on in order to satisfy the good of the many to have security. The ends to getting at a good, namely, national security, may be too high to ethically allow for a curtailment in personal privacy, as identified in the hypothetical bill proposed above.

For certain, a Kantian lawmaker examining a security bill would further look at particular sub issues with the bill and reject them entirely as not moral. The issue of profiling for example. Under a categorical imperative test, the idea is plain wrong. It is not just to single people out and subject them to interrogation based on what they look like or their ethnicity. This violates a grater value prohibiting discrimination. It does not matter that greater public security is achieved, or more specifically, everyone is not checked because it is more convenient and the lines at airports would go faster if only a few are checked. Applying the Ends test, the ends of achieving greater public security, and furthermore speeding up check in time at airports do not justify profiling people. A rule utilitarian would struggle with the issue, but agree with profiling as it does do better for the greater number of passengers. A Kantian would abhor and oppose this tactic.

On the issue of increased security in general, there would be caution among both the Utilitarian, and the Kantian, but both would be in favor of passing a security measure of tougher standard. The Utilitarian wants to satisfy the greatest good, the Kantian will make sure that the security measures are fair and follow the fundamental principles of justice, that the rules themselves out to be the best ones.

In conclusion, I find that the best way of looking at these complex arguments is to synthesize the two philosophical arguments given. In a way, the debate can be conceptualized under the model of passing a piece of legislation. In the place of political parties, the two different schools of thought, the Rule Utilitarian and the Kantians would act as political players. Their goal would be to argue and pass a law to increase security. Should this have played out, and a compromise reached, the compromise would look like a position somewhere in the middle. The Kantians may wish to strike down several ideas, such as the use of profiling based on ethnicity. However, they may be satisfied with profiling based on an independent characteristic, such as how someone purchases a ticket, where they buy it, how they pay it, or other non-personal, non-ethnic characteristics or warning signs, such as suspicious behavior. In terms of privacy, the Utilitarian would have to win out, because in a terrible situation, some measure of security is needed. The Utilitarians fault, should they opt for greater security over privacy, would lye in that the need for greater security is a short term goal, given the current heightened security and fear. However, privacy is a long term issue which if violated to much, can be more harmful to society than terrorist incursions. Many more options must be considered, also the issue of compromising one’s points to accommodate the interests of the group has to be considered when passing legislation.

Bibliography:

Pojman. Louis P. Ethics: Discovering Right and Wrong. Third Ed. Belmont, CA: Wadsworth, 1999.
http://www.epic.org
http://www.indefenseoffreedom.org
http://www.mike-pereira.com/subpage/docs/encrypt.htm