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It's actually a more complicated question than that. First, given that we don't know exactly how well the technology being used filters the information being captured (or indeed, who is being captured), a good analysis isn't really possible. Second, there's a question of whether the program is useful if its operational details are public knowledge vs. if those details are revealed. (While any terrorist group knows it's being spied upon, knowledge of how this spying is being done allows for more effective concealment.)

Without knowledge of at least those two factors, a good case is pretty difficult to make.

Posted by: A. Rickey at February 12, 2006 07:05 PM

Frankly, no, we don't need it in this form. The more that we give into the paranoia that motivates this incursion into civil liberties, the more the terrorists have won. There is a certain glibness meant by my referencing this catch phrase, but I do mean ultimately to contact the little truth that hides therein. Which is to say that when we get to the point that we must be able to turn our gaze on anyone at any time for any reason and fuck you all if you want to know why (because, let's face it, the evasion of FISA means exactly that) then our power has become the means by which our fear makes itself known. Shorn of the requirement to show cause, the concern to be secure (which is reasonable and absolutely acceptable) metastasizes into a threat that because it can be anywhere is thus everywhere. Then terrorism really does become a normal part of the scene, ineradicable because we can not recognize from where or what it comes. And that then becomes our world, inherently dark and stiflingly hopeless.

Do we need to be secure? Yes. Do we need to be secure by any means necessary? Absolutely not. No more data mining. No more warrant-less wiretaps. When we stop being a society of laws, we start telling the terrorists they've won.

Posted by: Famous P. at February 14, 2006 01:18 AM

Maybe it's just me but I've always just assumed the government did stuff like this in the dark. And it doesn't bother me. I bet the government does A LOT more than we know about. Even comapred to known governmental powers like eminent domain and taxes, this is really not that big a deal.

Posted by: Igots at February 15, 2006 01:33 AM

You know, I don't have a problem with it either, as long as the gov't has a reason for doing it and has followed the law by getting a warrant, even the ones the FISA court has handed out like toilet paper. And it is a sure bet that the gov't does a lot more than just this. FISA was implemented precisely because the gov't did a lot more. It isn't about preventing this sort of surveillance but rather preventing the abuse of such capability. There is a long and not particularly distinguished history of exactly such abuse; J. Edgar Hoover comes to mind; the Nixon administration, whose abuse of federal intelligence gathering capabilities led directly to FISA; and many, many more instances that give more than adequate cause for concern that the gov't is doing this improperly, unethically, illegally and for reasons that have little to do with national defense. So yeah, we need the minimal oversight that FISA provides to prevent such abuses from happening just as much as we need a gov't that does more than react in response to some general and non-specific sense of fear.

Posted by: Famous P. at February 16, 2006 12:00 PM

With regards to the Famous P. position, I have to ask:

Do you think that under FISA as written one can get a warrant for a data-mining program?

I ask because when I parsed the statute in a serious and analytic fashion (as in, for a moot court brief not a blog), I was of the opinion that FISA wouldn't allow one to get a warrant for any surveillance technology that required capturing large amounts of data and withdrawing only that which would be subject to a warrant. Which then would make spying upon something like digital data sort of difficult.

(I don't, however, have significant case law to this effect, and it's an honest question.)

Posted by: A. Rickey at February 16, 2006 04:39 PM

First, from a technological standpoint, targeted spying on digital data is not a challenge. I won't go into it here but suffice to say that packet switching, the backbone of modern telecommunications systems like the internet, requires to, from, and reassembly information in each packet, making the whole a lot less anonymous and secure than many would like to believe. Now, to your question A. Rickey.

No, I don't think so as FISA specifies that an individual would need to be named, or at least described, in order for a FISA 'warrant' to be issued. But this is precisely why they ignored FISA and exactly what points to them doing something more than simply wiretapping.

What's happening now only makes sense if what the gov't has engaged in is a large scale data mining operation along the lines proposed by John Poindexter (of Iran-Contra fame) under the name of Total Information Awareness (you can find some info about it here). That program was specifically defunded because of serious concerns about civil liberties. The evasion of FISA is one thing. But that they might be engaged in something like TIA now is something altogether worse.

Data mining has less to do with investigating specific threats then fishing for information on potential threats on the basis of little or no concrete information or on the basis of information derived from computer models of 'behavior' derived from extremely large and complete databases. Credit card companies engage in a similar practice in assigning you a credit score, which is based not only on actual behavior but what they project your behavior will be like.

I won't go too far down that road as it gets freaky and weird and strangely X Files-ish except to note that what TIA proposed was like something out Philip K. Dick's worst nightmare and yet absolutely real and completely within the capabilities of the resources and technology available. I do believe that what the gov't is protecting is precisely such a program, though perhaps somewhat more limited in scope. Such a program is indeed possible (there's a good Ars Technia article about the technological plausibility of such a program here and a followup about why it's bad here) and from the looks of what the EFF is suing AT&T over (here. Be sure to check out the ACLU's page on what the NSA can do) is exactly what they are doing.

So, do we need to be safe? YES. Should we wiretap in pursuit of security? YES, but only when we have hard & credible evidence that points to a specific threat and/or specific individual or group. Should we cast a net so wide that oversight such as that provided by FISA becomes impractical because of the number of people involved and/or our suspicions are developed on the basis not of hard facts but rather some deviation in a statistical model? Hell NO! I don't have anything to hide. But that does not mean, in any way, shape or form that my life is or should be an open book that the gov't can read as and when it wants in pursuit of a bogeyman it only fears may exist.

Posted by: Famous P. at February 17, 2006 04:09 PM

Well, looks like it's not speculation anymore. TIA Lives On.

Posted by: Famous P. at February 25, 2006 11:23 AM