The latest New York Times story on government spying says that the NSA mining and analyzing large volumes of communications data.
I wonder how and whether law can be written to cover such activity in a world of ubiquitous communications and data. That’s what I want to discuss.
(But first, let me stipulate a few points, your honors: First, I don’t know much about the law in this arena and that’s why I haven’t said much about these stories; I’m pointing this out now to save you the effort in the comments. Second, as in the prior Times story, the primary issue here is the adminstration’s refusal to get proper warrants and, yes, of course I believe the administration should follow the law. But third, this week’s On the Media (transcript not up yet) explains why the current law, FISA court, and warrants may not be adequate for the data age. Finally, fourth, I do believe that the government does need to spy on and find terrorists and until I see an enemies list led by Barbra Streisand, I won’t just assume that the current, former, or next government is doing this for the jollies; it’s possible, but I won’t assume it and neither will I too easily give up the tools needed to stop the next terrorist attack. While I’m at it, I’ll add that I am not a privacy freak and I am a hawk on terrorism. Enough caveats? Now back to the point….)
If I got it right, this week’s On the Media explained that current law is designed to hunt down known terrorists — to get a warrant to listen to them — rather than to comb through data to gether information — that is, to find terrorists. It stands to reason that analyzing communications data could unearth patterns and anomolies that could lead to suspicious activity.
The first problem with this is that you don’t know who the suspects are and what the suspicious data are until you look, until you have access to everything passing through some point. Next, you can’t find the anomalies until you establish the norm. Together, this means that our data become a necessarily ingredient in the analysis; we are the norm that defines the anomaly and our data passes through the same points with the suspects’. I think many of us could tolerate the idea that if the data we law-abiding, nonterrorists produce were only part of an aggregated pattern, this might be OK.
But, of course, our fear is that we will get caught in the net for other reasons. We fear that the government will decide to go after people who say “fuck” on the internet. We fear that the the state IRS will find out what we ordered online and make us pay local taxes. We fear that a divorce lawyer will be able to subpoena this data flow to get evidence of an illicit IM.
OK, so what if we say that data collected in such a manner can be used only for the limited purpose of finding and stopping terrorism and that it is out of bounds for any other purpose. But what if the anomaly that pops up in analysis turns up a kiddie porn ring or a vast insider-trading conspiracy or a mafia network? Should it still be off-limits? Would the fact that the government knew about it in one context prejudice any separate investigation and prosecution?
The point of all this is that I wonder what our rights are as an aggregate, as a community. It’s not unrelated to the question of who owns the wisdom of the crowd:
We, the crowd, create data through our activities that, in the aggregate, has value — value to categorize content, to target advertising, to establish norms. Who should mine and who should protect that value? And in the open world that enables so much else — the free control and creation of communications and content by the individual — opportunities to observe our behavior and tap that value are also created.
My point in all this is only to say that this is a new and complex area of technology, law, danger, and opportunity and requires new thinking from Congress and open deliberation — without, of course, compromising intelligence publicly — from the administration. My real fear is that our leaders don’t have the knowledge or vision to deal with this. But hiding from the challenge isn’t the answer, either.