Judge Richard Posner of the 7th Circuit Court of Appeals weighs in on the NSA spy flap:
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration’s political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects — a matter that was quickly exposed despite efforts at concealment.
This has been my sense as well, although some people with more knowledge than I have of the state of the art of computer technology have argued otherwise.
Posner argues that the real threat is that our intelligence apparatus has still not been sufficiently transformed to fight this new enemy:
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
While I agree that fighting crime and fighting a war is different, and even support the NSA surveillance based on what I now know, the idea of unfettered spying on innoents who “might” have useful information. Drawing that line is problematic, not only from a civil liberties standpoint but also from a practical one. Resources are scarce and wrong choices could quite literally result in people dying.
The Pentagon’s rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security. The principal domestic intelligence agency is the FBI, but it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only that were so.
Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.
I certainly agree that the FBI, our prime counterterrorism agency by law, is still very much bogged down in J. Edgar Hoover’s image. From what I can gather, its special agents are still the stars of the Bureau while its counterterrorism experts are viewed as lower echelon “support.” Given that it actually does have a law enforcement mission, that’s unlikely to change and, indeed, can not change given that organized crime actually is a more likely threat on a day in, day out basis.
Update: Quite a bit of reaction on Posner’s piece from around the blogosphere.
GWU sociologist Kieran Healy notes the irony that, “Earlier this month, Judge Richard Posner wrote a brutal opinion (accompanied by some entertaining oral argument) savaging the Bureau of Immigration Appeals for its capricious decision-making process, its inability to keep track of paperwork, and its willingness to dump the consequences of its ineptitude onto the people it passes judgement on—in this case by deporting them for no good reason.” He is also quite skeptical of the technical argument:
Posner is right that computers aren’t sentient and can’t really do anything by themselves. That’s actually a problem. They are technical tools put to use in organizations staffed and managed by people. Data-mining procedures (together with things like the criteria for “intelligence valueâ€) are invented by people and I see little reason to be confident that ever-more powerful, automated surveillance and data-mining tools will encourage those people to do anything other than enthusiastically apply them to the greatest extent possible.
I don’t disagree in principle but, practically, think the sheer volume of information largely mitigates against snooping for the sake of voyeurism. And, as I noted in my TCS piece, those willing to flout their authority and the law are unlikely to be constrained by legal nicities.
GWU law prof Daniel Solove is also unimpressed by Posner’s consistency or his arguments.
In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.
Solove rightly notes that simply crying “national security” is no reason to allow government agencies to run amock. But he goes a bit far with this:
If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.
I lack to inside information necessary to evaluate the relative effectiveness of this vice alternative programs. (Indeed, if I did have it, I wouldn’t be at liberty to write about it.) But we’ve been led to believe that this program has already thwarted terrorist plots. And, certainly, electronic intelligence may well be an effective way of “tracking down loose nuclear weapons.”
Kevin Drum, who may join the Cato Institute any day, is incensed by Posner’s use of the word “entitled.”
Entitled! The federal government is entitled to read my email, phone conversations, and bank records even if I’m not suspected of anything. As long as it’s a computer doing the sifting, and as long as there’s some alleged connection to “national security,” anything goes.
I too, would stop well short of that.
