The intelligence of the crowd

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.

  • james

    The fear that the ruling party uses the info for oppo research and tactics against the other party in elections.

  • Jimmy

    Not being a “privacy freak” or being a “hawk on terrorism” doesn’t mean we should blithely allow any administration to ignore the law of the land. Of course I want them to keep me safe, but if we allow any government to set aside the law in the name of national security then we are pretty poor citizens. This has very little, in my opinion, to do with national security as it does with this president’s excuses for not following the law. You don’t just ignore a law you don’t like, you work within the government to change that law so that it not only allows you to accomplish what’s needed, but also safeguards the rights and freedoms many Americans have fought and died for – even when that means compromising with your political opposites. This system has worked for more than 230 years. Should we just set that aside because an elected leader says we should, or doesn’t want to work with Congress? Of course not. And no, I don’t believe any administration is doing this “for their jollies,” but some of the groups being surveilled are questionable at best and most likely a waste of our national security infrastructure.

    By the way, the Barbara Streisand remark: kinda stupid. What is your deal with American citizens, regardless of who they are, speaking their mind – even when they don’t agree with you? This sort of immaturity nearly ruins an otherwise thought-provoking post.

  • Well, Jimmy, read the post again: I said the adminstration should get legal warrants.
    As for Streisand, well, she’s a natural born punchline. Lighten up.

  • Jimmy

    Granted on both accounts, but I do love a good Streisand tune.

  • Thanks, Jimmy.
    People, people, who need people…..

  • J

    Are government surveillance operations not part of “The Crowd” for the purposes of your argument? It seems they are in this case. I’m puzzled by the assumption by so many people (who, coincidentally, seem to be hostile to the current administration) that this activity, which was briefed to congress and reviewed by the FIS court, is illegal.

    The president was granted a lot of power to pursue the war on terror, and human nature being what it is there’s no question that those powers will eventually be abused and scaled back. But we’re not there yet with this episode.

    A side rant: please tell me you don’t teach your students to write nonsense like “collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials”. Since those questions have evidently been answered, so what? If you don’t like what’s going on, write an editorial advocating a change in the law – but keep that crap out of news stories.

    Babs was great on SNL.

  • jimbo

    This is the best post on the topic that I have yet seen. I have no problem with NSA or some other agency combing through billions of phone conversations to find patterns that might identify a terrorist network. The problem is, as you point out, politicians will not stop there. As I understand it, a lot of the stuff in the Patriot Act was borrowed from the war on drugs and RICO. There is a reason for the system of checks and balances. The only way to stop the most egregious abuses of this power is to have the branches watching each other. I really hope that there will be a way to hash this all out without spilling secrets to terrorists. This will surface in discussions of the Alito nomination. The question will be how willing are Bush’s judicial nominees to check the power of the president. Unfortunately, the Dems are a lousy opposition, and some of them will, rightly, be seen as caring more about the rights of terrorists than finding ways to prevent future attacks.

  • Ed Poinsett

    The law lags way behind the reality. Not that this is to be unexpected, but FISA was written before Cell Phones or Disposable Phones even existed. If you’re a terrorist today, you can buy a disposable, do your damage and throw it away before a warrant could possibly be issued. Do we ignore this based on some notion of civil rights being trampled? I have no problem with the idea that the law insist that any warrantless intercepts still require a post facto FISA review, but to tie the president’s hands in the war we are presently involved in is suicide. I’m not a lawyer either, and it seems a good idea to clarify some of these issues with a national debate. However, to pillory the president about national defense for political advantage is insane.

  • Andy Freeman

    > The fear that the ruling party uses the info for oppo research and tactics against the other party in elections.

    Remind me – did you care when the Clintons actually did it? (FileGate etc) Or is it only a concern when the NSA under a Repub administration does something that involves the same methods but different targets?

  • Andy Freeman

    If BushRoveCheneyHitler was the evil alleged by some, they’d let the Dems win on surveillance, let an attack succeed, blame the latter on the former, and watch 10-15 states blink red and the dems disappear as a national power.

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  • Rick Smiddy

    Preventing the abuse of power is the point of having checks and balances. With oversight trust is not an issue. Without it trust is the issue. I do not trust this ethically and credibility challenged president with unchecked power, especially during a war he started for reasons that are highly suspect. And who is to say what a future president would do with unilateral power. As hard as it is to imagine, he or she could actually be less trustworthy than Mr. Bush, though I doubt it.