Able Danger Blog

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Monday, January 02, 2006

FISA and data mining technology

Dave Nelle at Red State has an interesting post on FISA and Able Danger:

Data mining has real value in fighting terrorism. The military had actually identified four of the 9/11 suspects including Mohammed Atta a year before the attack by using data mining under a controversial Department of Defense program called Able Danger, unfortunately no action was taken against them prior to the attacks on 9/11. If used widely it could certainly play a major role in discovering terrorists before they strike.

The problem with data mining is that it may be most effective not at gathering evidence like a traditional wiretap, but rather as a tool to identify potential suspects out of a much larger pool of mostly innocent people. It certainly can be used effectively to figure out which calls to monitor and which to ignore, but it can also be used to figure out which people to monitor and which to ignore. That means a great deal of random monitoring of people who are not suspects, not named in warrants, and who are guaranteed a certain level of privacy under the 4th Amendment of the Constitution. These people ought to be protected in some way from having their privacy randomly invaded in order to identify those people who actually need to be spied on.

The counter-argument is that data mining does no real harm to the innocent - the old "what have you got to hide if you're innocent" argument used by cheesy cops in many a TV show. The computers sift out and eliminate most of the innocent calls and they are erased before anyone even sees them. Those calls which do get sorted out by a human aren't retained unless they are relevant to an investigation, so theoretically once the information is fully processed the innocent are eliminated and only information on the guilty is retained. Nonetheless, the innocent are still exposed to scrutiny and that's a violation of their privacy rights. This technology also raises the specter of a day when computers might be used to monitor all communications to sort out the good eggs from the bad throughout the entire population, looking not just at terrorism but at every potential minor legal infraction, a big step towards a 'big brother' style high-tech police state, the mechanism for which may already exist in the much feared Project Echelon.

Data mining certainly isn't the only subject for concern in the intelligence gathering arena of the War on Terror, but it's a good example of how difficult it is to draw a clear line between legitimate investigative techniques and innovative but potentially questionable methods demanded by necessity, but not necessarily clearly acceptable under existing law which has likely been written to address very different concerns. Changes in intelligence needs and technology often leave government agents operating in a gray area and doing whatever they think they have to up until the point where someone in authority specifically tells them they're out of line or Congress catches up and passes a law specifically authorizing their activities.

Should NSA computers be sorting through thousands of innocent phonecalls to find a few suspect conversations? Certainly not in an ideal world. Is that small potential violation of privacy a justifiable price to pay for such an effective tool in finding threats to the nation? In the real world that's certainly a reasonable argument. What's certain in all of this is that we need clear and up to date laws which express unequivocally what intelligence gathering methods are and are not permissible given contemporary needs and modern technology, and the FISA system is not the answer.