Person of Interest

I’m going to venture some observations about the metadata mining/PRISM scandal. There are some commentators on the “right” (e.g. Karl Rove, Andy McCarthy, John Yoo, Marc Thiessen, Lindsey Graham, WSJ editorial board) who defend the NSA programs.

i) It’s hard to evaluate the programs since many details remain shrouded in secrecy. And gov’t–especially this administration–has a habit of lying to the public.

In addition, the issue is specialized in terms of legal and technological distinctions.

ii) One assurance we’ve been given is that gov’t surveillance is still subject to Fourth Amendment protections via Supreme Court precedents.

A prima facie problem with that assurance is that FISA court rulings are classified. To my knowledge, the Federal judiciary isn’t privy to FISA court rulings. So the FISA court isn’t accountable to SCOTUS, beyond the initial appointment process. It operates like a shadow government. At least, that’s my understanding.

iii) We’re also told that this is necessary for national security, but because we’re also told that we must protect our methods and sources, officials won’t explain how this is necessary for national security. Hence, one can only speculate.

iv) I’m just guessing, but I suppose the basic principle is that if you monitor everyone, you thereby snare the subset who are terrorists. By screening everyone, we catch the bad guys.

Assuming that’s the principle, I wonder if it’s really sound.

a) Although I’m no expert, insufficient information is not the only way to miss connections. Information overload is another way to miss connections. You can fail to connect the dots because you sample too many dots. The more dots you have, the more ways they can be connected. Random connections.

Now, one counterargument we often hear is that we have supercomputers that sift the data to detect patterns. But even making allowance for that fact, if we’re collecting data on billions of electronic transactions and communications every day, then even if we have supercomputers to boil that down, I still wonder if the residual isn’t too much for human agents to process.

b) In addition, isn’t it possible for savvy terrorists to evade surveillance? As one commenter put it:

The NSA programs mainly gather data about US citizens and residents. Terrorists can avoid being ensnared by using multiple burner phones (used no more than twice, power off until used in unrelated locations) random public phones, multiple email address used infrequently, multiple WiFi sites from McDonalds to Starbucks, internet access in libraries, and stenography to contact cells. Only private citizens and really dumb terrorists will be in this system.

v) But let’s assume, for the same of argument, that the dragnet approach is effective. The rationale for mass surveillance would apply to criminality as well as terrorism. Why confine it to counterterrorism? Why not let the FBI and local police intercept all of our electronic transactions and communications? They’d catch more criminals as well as preempting some crimes.

The answer, of course, is that we’re supposed to be living in a free society rather than a police state.

vi) This is often cast in terms of the perennial balance between liberty and security. But that’s a false dichotomy. Terrorists usually fit a familiar profile. You don’t have to monitor everyone to catch the terrorists. Therefore, we don’t have to cede civil liberties for greater security. We just need to focus our resources on the demographic high-risk groups. Indeed, counterterrorism is less effective if you are spread too thin.