59 Pages Posted: 2 Mar 2017 Last revised: 31 Jan 2018
Date Written: February 28, 2017
How does one balance national security and civil liberties when they are essentially incommensurable values? This Article seeks to answer that question by looking at both as a function of individual choice. We like national security in principle because it stops terrorists from taking away our choices — the choice to live, the choice to retain the integrity of our health, and the choice to act in the manner that we prefer. We like civil liberties because we want to be free from government interference when choosing the speech in which to engage, religion we practice, or many other fundamental aspects of our lives. This Article argues that we should examine the ways in which national security measures create costs and benefits in the number and types of choices that we exercise. Applying this framework reveals that many programs of the National Security Agency (NSA) and Transportation Security Agency (TSA) reduce choices much more than they increase them. These programs should accordingly be modified or eliminated, and future programs should only be enacted if they contribute to the number and/or quality of choices that individuals have. The Article concludes with suggestions to advance this goal, including the potential privatization of the TSA and the imposition of greater liability for government actors who reduce choices by violating individuals’ civil liberties.
Keywords: privacy, NSA, TSA, cost-benefit analysis, national security, civil liberties
JEL Classification: F50
Suggested Citation: Suggested Citation