Last weekend, Attorney General John Ashcroft’s so-called TIPS program was aborted when the House of Representatives voted on a version of the homeland security bill with language that prohibited national snitching programs. The “Terrorism Information and Prevention System” was Ashcroft’s Deputy Dog initiative: a proposal to elevate millions of everyday service people—from the cable guy to the meter reader to the UPS lady—into his own uniformed Posse on Terror. The initiative died because almost everyone—from Sen. Orrin Hatch to the American Civil Liberties Union to the national postal workers—agreed that turning us into a nation of snitches is a bad idea.
Except it really wasn’t all that bad an idea. It was an artlessly presented, secretly concocted, and poorly crafted idea, but given the terribleness of most of the administration’s anti-terror initiatives, the notion of creating a formal mechanism for collecting information on suspected terrorists wasn’t that bad. If the pizza guy had called in a tip on Mohamed Atta last August, our world might look quite different today. And before the angry libertarians start screaming, let me just suggest that we already have precisely such a reporting system in place in this country: In every state in the union, laws mandate that certain professionals report suspicions of child abuse, neglect, and sexual or emotional mistreatment to the state. These laws haven’t created an Orwellian society of snitches. In fact, there is evidence to suggest that deputizing the doctors, nurses, teachers, and social workers who work with kids each day has resulted in a dramatic increase in the number of child abuse cases that come to light and has done far more good than harm in the effort to protect our children.
The myriad critics of the TIPS program pointed out its flaws last week: “This is an end run around the Fourth Amendment,” Harvey Silverglate, a Boston lawyer told Business Week Online. “It’s a way into every American’s home without judicial oversight.” Rachel King, legislative counsel for the ACLU, predicted, “Law enforcement may end up chasing information based on uninformed citizens who have their own biases or may be prejudiced.” “We don’t want to see a 1984 Orwellian-type situation here where neighbors are reporting on neighbors,” Sen. Hatch told a Senate hearing.
All true. But each of these same dire possibilities lurks in the existing mandatory child-abuse-reporting laws, yet few of us are arguing for their repeal, and fewer of us argue that they have brought about the parade of horribles cited by the critics of TIPS. Indeed, many of us recently called for expanding the reporting laws to include clergy, following the recent church sex scandals. We believe that reporting systems work. Perhaps instead of eviscerating the whole idea of TIPS, it would have made sense to hold it up against a template for a program that works pretty well. What have we learned from the mandatory abuse-reporting laws? How can we distill what works best in the war on child abuse and implement it in the war on terror? It’s too late to save TIPS, but at the very least, scrutiny of the child-abuse-reporting laws might provide some hints for Ashcroft in framing his next snitching-based initiative.
The states’ mandatory-reporting statutes exist for good reason: We believe ferreting out child abuse is worth sacrificing some privacy. We believe child abuse is so clandestine that anyone able to pierce the shroud of secrecy should report it. We believe that simply asking good Samaritans to come forward and report abuse is ineffective; they don’t. And we believe that child abuse is so awful that identifying the small number of substantiated cases is worth sifting through masses of false reports.
Why is terrorism different? Can’t an equally compelling argument be made that terrorism is so vile, and obtaining information so difficult, that it’s worth sacrificing some privacy to root out cells before they strike?
Mandatory-reporting laws have taught us certain truths about what happens when we deputize private citizens as government investigators. For instance, we know that there are remarkably few instances of bad-faith abuse reports. We know that the hypothetical vengeful social worker or uppity teacher who rats out parents for kicks is not a pervasive problem.
The enlistment of professionals with special expertise and training to identify child abuse highlights one of the great weaknesses of TIPS: Truck drivers and postal workers are not uniquely equipped to identify terrorism. There is no reason to believe they’d do a better job of it than, say, Internet reporters. A TIPS program that deputized professionals with meaningful skills and training (such as airport workers or flight instructors) might have stood a better chance than a program that merely deputized those people able to enter your home without a warrant.
Another related virtue of the mandatory abuse-reporting laws is that they come with precise definitions of what constitutes child abuse. Amending earlier laws—which often conflated poverty or religious preference with abuse—state laws now specify what “abuse” or “neglect” involves. But what was the definition of “suspicious” under TIPS? What sorts of behavior would have warranted reporting? A child with a bruise is already ambiguous data, but a program asking bus drivers to turn in “terrorists” was doomed almost from the get-go. A narrower, smarter TIPS program identifying a handful of verifiable predictors of terrorist behavior might have been useful. A vague mandate to hit the streets and root out suicide bombers was a license for vigilantism.
Under the mandatory-reporting laws, mechanisms for reporting tips are established, centralized repositories of information are created, and investigative procedures formalized. One of the great shortcomings of the TIPS program was that no one could give a straight answer about where the tips would go and what would be done with them. Last week, in testimony before the Senate Judiciary Committee, Ashcroft insisted that information gathered by TIPS would go only to existing law enforcement channels and not be collected in a central database. But he was unable to say what the various agencies would do with the information, if anything. If nothing else comes out of the carnage of TIPS, some program alerting Americans to a toll-free telephone number where suspicious behavior could be reported would still be a step in the right direction.
Perhaps most central to the effectiveness of the mandatory-reporting laws, though, is the fact that they are not deliberately structured to circumvent the Fourth Amendment’s warrant requirement. By deputizing teachers and doctors to report suspected abuse encountered outside the home, these laws generally respect the constitutional sanctity of the home. Ashcroft later backpedaled from the notion that TIPS was intended to recruit precisely those service people who have access to your home, telling the Judiciary Committee at the 11th hour last week that volunteers would simply report on “anomalies, things that are different” and raise suspicions. He emphasized, too late, that TIPS was not “a program related to private places like homes.” But clearly that was its original intent, and that was why these particular workers were selected. By circumventing the warrant requirement and making the cable guy an agent of the state, Ashcroft infuriated people of every political stripe. A TIPS program deputizing American workers to report suspicious activity outside the home would have been closer to the abuse-reporting laws and might not have died in Congress.
Mandatory abuse-reporting programs have launched a thousand lawsuits, and while the tippers usually prevail, defending against them is expensive, time-consuming, and disruptive—especially as the numbers of false-positive tips rise. Caseworkers are often overwhelmed by tips, and as a result, many are not investigated. The lesson for Ashcroft? Don’t set up a reporting system unless you have the resources to follow leads. Police officers shouldn’t be dispatched each time the mail carrier hears me play my Greatest Iraqi Dance Hits CD.
Even a TIPS enthusiast is given pause by the news that unsubstantiated child abuse reports may stay on the books for years. In Arizona, uninvestigated reports stay on the state registry for five years, presenting real consequences for parents who have been reported. The idea of false TIPS leading to permanent state records is properly horrifying to anyone afraid that he might lose a job over a UPS driver’s bogus tip.
No one disputes that we must sacrifice some privacy to root out terrorist cells. Reporting programs work in other contexts and don’t automatically lead to a decline in civil liberties or even civility. A properly crafted TIPS program, which deputized the right workers to report suspicious, well-defined behaviors outside the home, a program with a clear follow-up procedure and an established information flow might have done some real good in the war on terror. Sadly, we’ll never find out.