Wasnt there supposed to strong correlation between Star Trek fans and pedophilia? Shouldnt we have a national register of Star Trek fans? Have FBI agents take pictures of people who show up at the conventions? Maybe have we should get a good look at Tivo records and see who is watching Star Trek the Next Generation?

Ah, the old "nothing to hide" chestnut.

Everyone who says this needs to be shot for stupidity. You ask anyone who says "I've got nothing to hide" if they would mind police cameras in their marital bedroom, just in case they are committing indecent acts, and watch them backtrack.

What they really mean is "they only think you've got something to hide, and that they personally don't need to be monitored". They just can't see the same argument being applied to them.

Sure, why not? And I have no doubt the auto insurance companies have statistical models that predict who is likely to get a moving violation over the next 12 months. Why not just have the government seize that data, round up all those people, put them in jail, and harvest their organs for transplant? That will reduce traffic deaths and will save many childrens' lives.

Cranky

If indeed "freedom" is just another word for 'nothing left to lose'...then we're not exactly free yet. We're at the precipice of having nothing left to lose - Losing the freedom from warrantless searches, freedom of association, freedom to express ourselves, freedom to demand probably cause prior to having warrants issued, freedom to visit "questionable" websites or check out certain periodicals/books from our public libraries, etc.

Yeah - I've got a problem with that...

I bring you the epic case of Drum v. Drum:

And if we can do it for suspected terrorists and child molesters, how about tax evaders and unlicensed gun owners? Can we tap their phones too because they're the "kind of person" who might be breaking the law? Should a court grant a search warrant based on a statistical pattern rather than a showing of specific fact?

Drum resisting a similar argument about making the minimum wage $50/hour:

http://www.washingtonmonthly.com/archives/individual/2006_04/008602.php

Good question, Tom. Likewise, if cutting taxes is good for the economy, why not get rid of them entirely? If three strikes send you to prison, why not one? If business is too tied up in regulations, why not ditch them all?

How tired and threadbare. If this kind of juvenile flailing is the best that opponents can come up with, there truly must not be any arguments left against raising the minimum wage. So how about if we stop listening to fatuous stuff like this and just give the working poor a helping hand instead? Raising the minimum wage a buck or two is the least we can do for them.

Similarly, I think we can listen to terrorist phone calls without worrying about going over tax evaders with the same methods. Chriminy.

Is it just a coincidence that the type of statistical analysis apparently being utilized by the NSA is the same sort of thing used by political operatives to track trends in the voting public? My immediate reactions to hearing about the this were 1) This is policy driven by political consultants, and 2) This is policy driven by pork. Seems like the outlets for this type of analysis fit into both.

One question of course is whether the profiling is truly neutral

Just as in the polling business, the specific wording, sequence and quantity of questions goes a long way towards skewing results ... in the profiling business the sorts of parameters and cross-linking investigated (or not) will push results in a direction

If you couple that with the fact that the system, in generating massive quantities of leads, must in the end use human prioritization in actually pursuing leads, you can end up with a psuedo-scientific, heavily biased result, used for all kinds of questionable purposes, consciously and unconsciously

You can't root out these problems technologically in the end; but you can institute true oversight, real questions and answers, real transparency, real bipartisan or non-partisan involvement

You could allow an independent agency of some kind to investigate the data from a variety of angles; the pattern of investigations and follow-through; the places the data and its intermediate conclusions end up (inside and outside of govt); etc, etc

Something like a permanent office of oversight with full security clearance, accountable to congress, scientific and non-partisan by design, with full authority to hear claims and questions by the public and to take real action vis a vis the various programs.

That has as part of its charter the duty to steer the programs in such a way as to protect privacy and the bill of rights to the greatest degree possible, while achieving security goals.

Basically real accountability and transparency.

A Hawk,

But don't terrorists evade taxes? So, shouldn't we look at and for tax evaders, since we could turn up terrorists in the process?

Under that beautiful forth amendment, the government must make a reasonable assumption of probable cause in order to obtain a warrant. It may be that the data the NSA has been collecting falls outside the sort of personal information intended to be protected, but can we say that the results of their analysis of that data are reasonable?

I doubt it. Maybe on the day when the military's anti-missile systems can hit what they're aiming at I'll believe it.

Tigershark-- My impression is that terrorists don't evade taxes. I was under the impression that the 9/11 hijackers did indeed pay their taxes. However, I'll freely admit I'm not an expert in terrorist profiles. Do you have any information that they do?

Other than the fact that using the same type of profiling this administration has mistakenly arrested, tortured, and hounded innocent people in the Global Whine on Terror, nahhhh, nothing wrong with it.

A-Hawk, shush. the grown-ups are talkng now.

Didn't Timothy McVeigh pay his taxes?

Sounds like the definition of a police state to me!

And who decides what "patterns" are authentic indicators of criminal behavior or intent?

Catholic priests are under scrutiny for child molestation. If I visit websites dealing with the Catholic faith and also look at porn sites am I perhaps going to come up in their screens for patterns which link me with child molestation? Or am I just one of the sinful but faithful with a prurient interest in pornography?

If my interests take me to websites dealing with progressive politics will I be targeted because of my political interests? Will they search through my internet use to see what "criminal" intent they can accuse me of?

If I am very religious and peruse religious websites at a time when religion is suspect will I be targeted?

The whole issue of the NSA screening huge databases leaves me queasy! As beauty is in the eye of the beholder definitions of criminality reflect the mind and personal beliefs of the definer.

And who decides what "patterns" are authentic indicators of criminal behavior or intent?

The Decider, of course

You know, I read somewhere that 70-80% of Children are molested by family memebers. So if you have kids, that means you should be monitered for that particular activity.

I'm thinking Un-American Chicken-Hawk should probably have a file. Just in case. If he has nothing to hide, why he shouldn't be worried!

I don't think many people would mind tapping the phones of possible child molestors, though I would. The polls show most people really DON'T mind having others get their information if they're not doing anything wrong.

I think this comes out of the fact that most people already think everything they do is recorded somewhere so they just don't care.

In which Dusty Foggo beats a guy with a baseball bat, gets it hushed up,

http://www.msnbc.msn.com/id/12779088/site/newsweek/page/2/print/1/displaymode/1098/

I think we can listen to terrorist phone calls without worrying about going over tax evaders with the same methods.

The question is, how do they know they're terrorists ? Are they listening to calls just because they matched a certain calling pattern ?

Who gets to decide whose calls get listened to, what criteria are they using to decide, and what safeguards are in place to prevent abuse ?

There are lies, damn lies, and statistics.

When the government starts using stats to determine who is a terrorist, criminal, or political donor, we're all in trouble.

Remember, statistically the average American has one testicle and one breast.

What about doing the same kind of statistical analysis on members of Congress, the executive branch and their staff persons. It would seem they have a marked tendency of either bending or breaking a lot of our laws. Lets monitor their activities and tap their phones and keep track of who they associate with. The influence upon our country for any of their misdeeds has the potential to be of very serious consequence to our republic. The people in the WH and Congress work for us and that gives us every right to know exactly what they are doing.

American Hawk, we've already seen that new laws passed specifically to target terrorists have expanded in practice to use against other criminals, like drug dealers. We haven't seen a movement by legislators to raise the minimum wage to $50 simply because we've established that a minimum wage can exist. How on earth are the two arguments comparable?

"Similarly, I think we can listen to terrorist phone calls without worrying about going over tax evaders with the same methods. Chriminy."
Posted by: American Hawk on May 22, 2006 at 2:48 PM | PERMALINK

I think Kevin is assuming that the techniques will look handy to law enforcement, and it's natural for law enforcement to pursue new and better ways to do their jobs. It appears to me Kevin is asking these questions in anticipation of such a development.

Problems with this?

Many, starting with the fact that the people sniffing the data will include actual and probable child molesters, terrorists, tax evaders, Republicans, and gun owners. Unsavory characters with an unhealthiny interest in other people's business and without the intellectual or ethical resources to keep their impulses in check.

As for your question: "And if not, why not? After all, if you're not doing anything wrong, why would you object to being investigated?" Just imagine it coming from an interrogator rather than someone as nonthreatening as Kevin Drum. It's why conscious citizens of democratic nations don't regard the Inquisition, the Gestapo, Stalin, or the McCarthy era with any nostalgia.

Remember, statistically the average American has one testicle and one breast.

It works with one testicle, but almost everybody has two breasts. The average is probably closer to 1.9ish, accounting for tragically rare masectomies.

That is a great quote though.

Anyway, I have my doubts that it's an effective program; I don't have the computer expertise to know for sure though. However, that doesn't mean we have to start doing the same thing to tax evaders; that's just a slippery slope argument.

"And if the statistical patterns just happen to target lots of wealthy Republicans or rural white gun collectors — well, that's how the cookie crumbles. If that's what the profiling turns up, then that's what the profiling turns up."

Hell with that... let's just sweep up all the child molesters, tax cheats, wealthy Republicans and rural white gun collectors on general principle. Detention camps, coercive interrogation and no due process for the lot of them.

Throw in the embezzlers, bribers, and insider traders for good measure, while you're at it.

It works with one testicle, but almost everybody has two breasts. The average is probably closer to 1.9ish, accounting for tragically rare masectomies.

Er, clarifying: Because men have breasts too. And it's tragic that masectomies are required, not that they're rare. Sorry, unclear post; long day.

Wasn't this a movie a couple of years ago...pre-emptive arrests from muses, who were just human tissue versions of the NSA?

good god

And if word got out that neighbors had been interviewed to find out if you were a pedophile??

all this shit needs to be stopped
until congress, the DEM congress, rewrites laws so there is judicial and congressional oversight and that this is ONLY FOR TERRORISTS and any other info found this way is inadmissable in court for any purpose.

But would we be OK with the FBI tapping someone's phone just because they fit a statistical profile?

If the statistical profile were demonstrably reliable enough to provide probable cause that such a tap would provide evidence relating to a criminal offense, then, sure, the FBI should be allowed to present the evidence to a judge and secure a warrant.

If not, then no. The invocation of statistical analysis would then be just smoke and mirrors to abandon probable cause and dismember the Fourth Amendment. Its really very simple. Any kind of information (provided that information is itself acquired by lawful means) that provides probable cause is legitimate to support a search, including electronic surveillance. The thing is, you've got to have probable cause, and except in the most extraordinarily exigent circumstances, you've got to get a judge to sign off on that probable cause so that executive authorities aren't unilaterally free to characterize their hunches as "probable cause".

Under that beautiful forth amendment, the government must make a reasonable assumption of probable cause in order to obtain a warrant.

"Demonstration", rather than "assumption".

I think it's a bit of a mistake to focus on the use of statistical or probabilistic analysis per se to identify criminals or terrorists. It happens all the time, and it's inevitable. Traffic cops hang out on specific stretches of the highway because of past observations about where people speed, rather than knowledge of individuals. Acquaintances of a murder victim come under suspicion, because we know that most murders are committed by people who know the victim, rather than by random people on the street. When Kevin asks, "But would we be OK with the FBI tapping someone's phone just because they fit a statistical profile?" I think it depends on what information the profile is based on. Telephone calling patterns alone? No. Previous convictions of child molestation? Okay. People working in law enforcement and intelligence don't start from a position of knowing nothing; they use what they know to narrow the search for people they want to catch. "All" the spying program does is cast a wider net over the population and use information that we've traditionally thought of as being private, which brings us back to the intrusiveness of information gathering.

No problem! Go watch the movie Minority Report and you'll see that this will probably turn out juuuuust fine.

Can someone explain to me what about this country is worth fighting for anymore? Will we know when our essential freedoms have been taken away? Or have they already been replaced Tivo, pre-fab housing and heated car seats?

After all, if you're not doing anything wrong, why would you object to being investigated?

A hypothetical example: what if we could tell whether someone will commit a terrorist act in the next week with certainty by giving them daily rectal exams? Anybody on board for that?

RSA -

You're right that the data is out there to be turned into information, and law enforcement is always searching for ways to improve their effectiveness and efficiency. But I do wonder to what extent this particular kind of expansive data gathering exists in law enforcement.

My impression is that the data used by law enforcement is typically law-enforcement-produced data involving arrests, convictions and so forth. I admit that there's also local knowledge about the habits of certain types of offenders - that they frequent certain bars/stores/events - but that's a bit different than what the NSA is doing.

The main problem with statistical analysis is that people who actually apply it are sufficiently conversant with neither the basic philosophical constructs of the field nor the inherent imprecision of the results that it provides. Consequently, there is a significat potential for abuse of the results. There is no way to design a surveillence system based upon statistical analysis which will not lead to destruction of innocent lives.

let's listen to Bruce Schneier:

Privacy protects us from abuses by those in power, even if we're doing nothing wrong at the time of surveillance.

The NSA spying program raises plenty of sensitive issues, but at least one of them hasn't received the close scrutiny it deserves: it's fundamentally a system for identifying criminals by statistical analysis. Americans need to come to grips with whether they approve of this.

No, No, No, Kevin.

The NSA "spy program" is not a system for identifying "criminals." It is a program designed to identify terrrorists who are planning to commit acts of war against the people of the United States regardless of they are located. The goal of the program is not to find and gather evidence that would be used in a criminal prosecution of these terrorists, but to identify them for purposes of being dealt with by the military.

In contract, the FBI is a domestic law enforement agency. As such, it would be subject to the constitutional provisions that deal with an individual's rights vis-a-vie the criminal justice system.

See the difference.

BTW, its hardly speculation that this might be extended beyond just "terrorism" when the Attorney General has already said this same technique is being used to look to identify leakers of classified information to the media, and to gather evidence for potential prosecution of the leakers and the reporters.

Its not something that could happen, or even that will certainly happen in the future, its something that has already, openly happening.

BTW, its hardly speculation that this might be extended beyond just "terrorism" when the Attorney General has already said this same technique is being used to look to identify leakers of classified information to the media, and to gather evidence for potential prosecution of the leakers and the reporters.

Aiding and abetting terrorism is terrorism. If a journalist gives away state secrets that help terrorist attacks, he should hardly be surprised that the AG goes after him.

We used to have the saying, "If you wouldn't tell Hitler, don't tell anybody". We need that same mentality back, and the AG is doing his duty by using the law to get us there.

"All" the spying program does is cast a wider net over the population and use information that we've traditionally thought of as being private, which brings us back to the intrusiveness of information gathering.

that's not ""All"". since it is done without meaningful oversight, and without accountability, we don't know what it's being used for, who's using it, what the guidelines are, etc.. i'm sure our resident Constitutionalists can point out the places where Madison intended giving the government that kind of power.

After all, if you're not doing anything wrong, why would you object to being investigated?

If I'm not doing anything wrong, then why do you want to investigate me?

In contract, the FBI is a domestic law enforement agency. As such, it would be subject to the constitutional provisions that deal with an individual's rights vis-a-vie the criminal justice system.

While there are some Constitutional provisions that are specific to the criminal justice system (for instance, the Fifth Amendment's self-incrimination provision), the Fourth Amendment is nowhere limited to criminal justice. It refers to the security people shall enjoy against government intrusion in the homes, and their private papers and effects, against any searches or seizures by the government. It does not limit that protection to the context of one area of government activity (unless, of course, you look at "searches and seizures" as an area.)

It applies whether the purpose is "criminal law enforcement" or "national security" or anything else.

(The most common remedy -- the exclusionary rule -- only applies to criminal process; one purpose of FISA is to provide a remedy that applies to violations for other purposes.)

The goal of the program is not to find and gather evidence that would be used in a criminal prosecution of these terrorists, but to identify them for purposes of being dealt with by the military.

actually, you don't know that.

Now this is just sillily inapposite.

1. Buckley v. Valeo established that $$$ is speech, and tax evasion is all about $$$, so any intrusion would be a violation of (have a chilling effect on) free speech.

2. Even unlicensed guns are guns. Duh. Read your second amendment, Kev.

3. Lobbyists earn their money drawing green lines around their interests. So, as a general rule, any invasion of privacy subject to the market forces in our political economy will be included or excluded on its merit$.

Today the 'Ch' stands for Chranky.

The problem really is that so much of this data is collected, bought and sold on a daily basis by governments, businesses and individuals already that it really does become a trivial matter for many people.

So if that's the problem, whether the data is used by a government agency or an ad agency, then what it the answer?

~Mark

[[Aiding and abetting terrorism is terrorism.]]

And using government classification powers to hide information about government crime is, itself, a crime.

C'mon, A-Hawk, show me one instance in which the media disclosed secret information about a government program in which 1) the program is legal, and 2) its disclosure demonstrably, materially harmed national security.

Go on. Take your time. I'll wait.

So if that's the problem, whether the data is used by a government agency or an ad agency, then what it the answer?

doubleclick doesn't have the US military at its disposal. they can't lock you up in a foreign country without access to counsel or representation while hiding behind the impenetrable wall of "national security". see the difference?

Drum jumps the shark

Buh bye.

A) Can we use such a technique to defeat spam?
B) Maybe we can call it something like spamassassin?
C) And then fork it to become Al-QaedaAssassin, El-QaedaAssassin, PedoAssassin, and DebtorAssassin.

We'd be rich!

The answer Mark, is simple.

If you want to avoid government intrusion in your private information, or avoid mass marketers or other private entities from doing the same, you should:

1. Never give your SSN to anyone unless that entity is involved with your taxes, ie, your employer, your bank, mutual fund, etc. No one else needs it. They can establish an alternate ID.

2. Switch to VOIP if you need hardline phone service. Telcoms, by law, must keep calling data for at least 18 months. VOIP companies aren't considered telcoms (yet) and most do not keep these records for more than 30 days.

3. Use talk and toss cellphones, or any cellphone with no contracts, month-by-month accounts, etc.

4. Use a P.O. Box as your address or record. Don't use your home address for any private contract, unless needed.

Statement 1 : "Aiding and abetting terrorism is terrorism."

Sounds pretty logical. Almost slam-dunkish.

Statement 2 : "If a journalist gives away state secrets that help terrorist attacks, he should hardly be surprised that the AG goes after him."

Slow your roll for a sec. Are you saying the journalist in question is a TERRORIST conducting real life terrorism? Doesn't that imply that the entire point of a Washington Post story "giving away state secrets" (like a phone monitoring program of dubious legality) is somehow to get people killed via a terrorist attack?

And doesn't that sound completely ridiculous? That the Post is actually trying to kill people?

Personally, I don't think you can be an accidental terrorist, although I believe you could certainly assist a terrorist by accident...

... which all of a sudden makes Statement 1 seem a lot fuzzier.

I think the larger question is whether we want the preventative mindset to migrate from terrorism to more traditional crimes. You can justify statistical analysis (if it's actually effective, a key point) in the attempt to stop mass casualty terrorism, but all other law enforcement endeavors are reactive - attempts to solve crimes after they happen. The real question underlying the child molester example is do we see our domestic law enforcement changing its mission to proactive prevention... those, I think, are some murky waters.

The real question underlying the child molester example is do we see our domestic law enforcement changing its mission to proactive prevention... those, I think, are some murky waters.

Not murky in the slightest. Flat-out unconstitutional. You can't prevent publication of stuff. That's our legal system, and I say thank god for that.

After all, if you're not doing anything wrong, why would you object to being investigated?

One could ask the same question of the Bush Administration in general.

I think Jim and thepeoplechoose had good points. If statistical profiling is used to select people to investigate, it's obviously a dangerous tool, but a tool that can be effective. (After all, the private sector is using the same sort of thing every day without our protesting much.) But in government hands, it needs controls. Like authorizing legislation. Like a cast iron audit trail, so everytime the data is touched is tracked. Like independent reviews, both the separate agency Jim suggested and a right of the press to look at uses. And Congress should put their money where their mouth is (instead of vice versa)--instead of excluding themselves from the law, they should be upfront. Let the press run statistical profiles on who calls whom on the Hill. Maybe the Cunningham and Jefferson scandals could have been caught earlier.

If you really want to get someone, you can. On any given day, we all commit some sort of illegal activity. Trail me home tonight and I might not come to a complete stop at a stop sign. If you want to get me for that, you can. The presumption is no longer innocent until proven guilty. It's guilty, pending evidence.

Slow your roll for a sec. Are you saying the journalist in question is a TERRORIST conducting real life terrorism? Doesn't that imply that the entire point of a Washington Post story "giving away state secrets" (like a phone monitoring program of dubious legality) is somehow to get people killed via a terrorist attack?

And doesn't that sound completely ridiculous? That the Post is actually trying to kill people?

Personally, I don't think you can be an accidental terrorist, although I believe you could certainly assist a terrorist by accident...

... which all of a sudden makes Statement 1 seem a lot fuzzier.

the problem isn't novel to terrorisms. Waaaaaaaay back when I was taking crim law, we had this hypo in class: A is a competent adult who intends to murder B. He knows that B will be on a passenger jet with 200 other people. A plants a bomb on the plane, with the sole intent of killing B. He has no intent to kill the 200 other people, but knows that they will almost certainly die as a result of his actions. How many murders is he guilty of? Answer: 201. If you objectively realize that the other people would die, then it's murder. If, however, you objectively didn't realize that the people would die, then the worst case scenario is negligent homicide (I'm simplifying and generalizing; criminal law is different from state to state and highly complicated).

Similarly, if a reporter objectively knew that people would die as a result of his story, then yes, that's murder, and if he knew that people would die by terrorists from his stories, then that's aiding terrorism. If he was negligent, then he probably doen't have the mens rea for terrorism. I'm sure the courts can sort that out.

Reading the AT&T/NSA documents published today on Wired, it seems the data collection (all voice and internet traffic, call and email content, etc.), or at least analysis of said data, is being marketed to law enforcement already. Check out the attendees list in the documents on Wired. We also know that biometric analysers and voice capture software is a component of the call tracking.

Another incendiary example could be the use of impersonal, system statistics to intervene, say, or preemt tragedy. Take pediatric development. Surely sufficient indicators exist today to identify a pool a high-risk children, starting at birth. Each year of additional data collected by monitoring the pool has a pretty high liklihood of identifying high-risk cases before they start school. Your imagination is as good as mine in where this kind of activity goes.

The technology aspects are always the easiest part. What are we going to do with the knowledge in all of the databases online today?

Only through strict oversight and judicial review can we use technology to its fullest extent in our national defense. It's the Congress that has failed to create a legal infrastructure for technology in warfare, law enforcement, and god-knows-what social engineering some nut comes up with.

And using government classification powers to hide information about government crime is, itself, a crime.

C'mon, A-Hawk, show me one instance in which the media disclosed secret information about a government program in which 1) the program is legal, and 2) its disclosure demonstrably, materially harmed national security.

Go on. Take your time. I'll wait.

The NSA program is legal; the president has all the executive power in the United States. Even Sy Hersh will only say it violates the 'spirit' of the law, whatever that means. Obviously, terrorists don't send thank you letters to the NY Times (even though they should), so 2) is difficult. However, that's one of the function sof court; it can act as the finder of fact. If it turns out that any given disclosure didn't mean 2, then the result would be an acquital. Of course, the standard would have to be beyond a reasonable doubt. (Wow, I'm such a nazi!).

Similarly, if a reporter objectively knew that people would die as a result of his story, then yes, that's murder, and if he knew that people would die by terrorists from his stories, then that's aiding terrorism.

then by not running off to the FBI with your iron-clad evidence that the Post is 'aiding terrorism', you are allowing those terrorist enablers to go free... or worse, if you pay them in any way, including clicking ads on their site or taking surveys of their's.

so, put up or shut up, get the feds after those reporters or take your bullshit elsewhere.

I think the larger question is whether we want the preventative mindset to migrate from terrorism to more traditional crimes. You can justify statistical analysis (if it's actually effective, a key point) in the attempt to stop mass casualty terrorism, but all other law enforcement endeavors are reactive - attempts to solve crimes after they happen. The real question underlying the child molester example is do we see our domestic law enforcement changing its mission to proactive prevention... those, I think, are some murky waters.

Proactive prevention is part of the core role of law enforcement, and I don't think anyone thinking about it would want that to change.

But proactive prevention that starts targetting people for substantively unequal treatment on the presumption that they fit a profile that might commit a crime, rather than focussing deterrent presence on times, places, and events where crimes are more liikely or likely to be more significant starts getting into the area where due process becomes a significant issue.

hen by not running off to the FBI with your iron-clad evidence that the Post is 'aiding terrorism', you are allowing those terrorist enablers to go free... or worse, if you pay them in any way, including clicking ads on their site or taking surveys of their's.

I said I don't have proof, and that finding any proof would be a question of fact for a court. What part of that is at all unclear? The FBI already knows what the Post et al has done.

American Hawk:

Your anology does not work. The whole point of the "depraved heart" doctrine that you bring up is when the person's ACTUAL ACT is in reckless indifference to a high risk of life.

A reporter's actual act is a newspaper story that harms no one and has no chance of hurting anyone. If it is the terrorist who uses what is written in the story as an excuse to harm someone, the blame is with him, not the reporter.

Unless you also believe that directors of violent movies should be charged with murder if a scene from their movie is replicated in a murder (or many other examples of this one-step-removed situation you bring up).

My problem is not the NSA program so much as the unitary president saying that this is what the country is going to do, regardless of any conversation, debate, congressional input or constitutional restraints. Maybe we should be using newer tools against terrorists and criminals, maybe we shouldn't, but the thought of GWB and the usual cast of obsequious "advisors" making the rules and guidelines in secret, and then running the program in secret is past scary. One of the parameters this group seems to have already included is reporters who write things they don't want written.

"Any problems with that?"

No, since September 11 changed everything.

I said I don't have proof

come on, put your money where your accusations are. don't be afraid of a little public ridicule or possible fine for wasting FBI time. show a little spine.

See the difference.
Posted by: Chicounsel on May 22, 2006 at 3:32 PM | PERMALINK

Yeah sure, and I'll leave it to people like you who have such a good handle on nuance.

Better yet, why don't you volunteer to submit your DNA. You and American Hawk. Let's go the Gattica route. I'm sure that statisticians can come up with a groovy algorithm that could save us all from each other.

Oh, Oh,...even better. Let's put all that on an RFID and give every citizen an RFID reader. Everyone would be so much safer.

And, scaredy cats like American Hawk will feel much safer. That is, if they ever came out of their basements.

American Hawk:

Your anology does not work. The whole point of the "depraved heart" doctrine that you bring up is when the person's ACTUAL ACT is in reckless indifference to a high risk of life.

If a reporter reveals information, then that possibility exists. A reporter cannot blindly pass along state secrets, and then claim he's just being a reporter. For instance, revealing a weakness in tanks that allows terrorists to blow them up would be a classic example. Similarly, telling terrorists how to avoid the NSA would be another example.

If a reporter reveals information, then that possibility exists. A reporter cannot blindly pass along state secrets, and then claim he's just being a reporter. For instance, revealing a weakness in tanks that allows terrorists to blow them up would be a classic example. Similarly, telling terrorists how to avoid the NSA would be another example.

I'll concede the first instance, but the second is complete tripe. The first contains data that is limited in scope - not many people really need to know the technical vulnerabilities of a tank. The reporter could simply say "the tank has weaknesses" and still satisfy the readership w/o comprimising anything.

On the second, it is quite germane for the U.S. public to know how to avoid government intrusion. You see, if it is perfectly legal for the U.S. military to spy on its citizens, then the citizens have every right to know how to protect themselves from unwanted, unwarranted oversight. If potential criminals and terrorists learn from this as well, then too bad. You see, every person has a right to protect their personal data from any third party - government or private.

AHawk, the terrorists use HUMAN COURIERS!

Similarly, telling terrorists how to avoid the NSA would be another example.

so, any program initiated by the government in the name of "national security" should never be discussed ? we should place our full trust in the goodness of the hearts of politicians ?

since when did "We're from the government and we're here to help" become 'conservatives' favorite words ?

all rhetorical questions, of course.

"Is it just a coincidence that the type of statistical analysis apparently being utilized by the NSA is the same sort of thing used by political operatives to track trends in the voting public? My immediate reactions to hearing about the this were 1) This is policy driven by political consultants, and 2) This is policy driven by pork. Seems like the outlets for this type of analysis fit into both."

you missed number 3 that NSA is working with Checkpoint to idenify democratic voters to supress vote in 06/08 (and beyond)

"After all, if you're not doing anything wrong, why would you object to being investigated?"

On the other hand, why did your parents tell you not to give information about the household to strangers?

Where's the guarantee that your personal information will not be used by/sold to child molesters, identity traffickers, thieves (personal and corporate), kidnappers, conmen, etc. Remember that guy, 3 or 4 at the Dept of Homeland Security (isn't the Homeland the Reich, by the way?), who was making dates with 14 year-olds. Who is watching the watchers?

It all flatly violates the law. Doesn't matter if a call originates or ends abroad, ANY communication within the US requires probable cause under criminal law or warrant from FISA which was specifically enacted to prevent exactly what is happening now and before (Church Report, 1976). Round and round we go!

Profiling in itself is illegal, and statistically based profiling seems very dodgy. Obliquely, some "research" led to 2 innocent people being prosecuted for child abuse in the UK a few years ago. When a profile becomes ingrained it has led to innocent people being found guilt here too (white woman, black rapist syndrome).

Think. Iraq is purely an excuse for war. The undeclared "war on terror" is being fought just as effectively as our "war on poverty" and "war on drugs". Except this one has been used to trample legal and constitutional rights and protections with no effective legislative resistance or oversight.

Any other countries declared war on terror? Britain or Spain or Indonesia? Remember terror can be home-grown too: Red Brigade, ETA, IRA, Symbionese Liberation Army, Oklahoma. Then what?

This government has already held innocent people for years without charge, and we know about 2 innocent people "rendered" overseas to be held and tortured; although foreigners, their protective rights, access to consul, were ignored. There isn't even a fuss about those who have died in our custody. What don't we know about?

It's out of control!

I don't know - there's been enough of a brou-ha-ha over using statistics to adjust for under-sampling of some populations in the decennial census.
If we can't trust it to just fucking COUNT people, I'm leery of any attempt to use it to ascertain who may be worthy of suspicion as a terrorist or other type of criminal.
Not least because the Census bureau's calculations will be magnitudes less complex than the NSA's.
If there is reason to doubt the accuracy of using statistical analysis to correct under-counting it is obviously the case that the doubts regarding the NSA's analyses are magnitudes greater.
Pick one and stick with it.
Statistical analysis is useful, or it ain't.

If statistical analysis is useful to the NSA for parsing call data to find patterns, to ID people they think may be terrorists, then it is certainly useful to the Census Bureau to get an accurate count of people across the US.
So let's have the Census Bureau do that!
And the sit back and enjoy the attendant shifting of House seats from red states to blue ones ...
I mean, you don't think the various Republican Congresspeople, judges and party apparatchiks opposed using statistical analysis for the census because they didn't think it could be accurate?
Do you?

That Seymour Hersh article,

http://www.newyorker.com/talk/content/articles/060529ta_talk_hersh

A security consultant working with a major telecommunications carrier told me that his client set up a top-secret high-speed circuit between its main computer complex and Quantico, Virginia, the site of a government-intelligence computer center. This link provided direct access to the carrier’s network core—the critical area of its system, where all its data are stored. “What the companies are doing is worse than turning over records,” the consultant said. “They’re providing total access to all the data.”

As we all know, it's a verifiable fact that people who use heroin have a huge correlation with having used so-called "softer" drugs prior to descending into the hellish netherworld of opiate addiction.

Marijuana is, therefore, a gateway drug whose usage must be eternally prohibited to keep our precious children safe from this monstrous harm. We all can agree, certainly.

But even more insidiously, while there's a high correlation with heroin users being former potheads, there is an *identical* correlation -- 100% -- between people who *breathe* and people who shoot dope.

Every single heroin addict was a *breather* prior to his loss to civilized conduct.

Breathing is therefore the *ultimate* gateway drug, even more significant than Mary Jane.

So to stop this insidious plague, the government must examine the behavior of everyone who breathes, in order to nip this epidemic in the bud. For the sake of our precious children.

That means *everyone*, no exceptions.

And since most of us breathers are, in fact, innocent of injecting evil substances -- surely no right-thinking citizen can object.

You all agree? I thought as much ... good.

The program starts tomorrow.

Bob

I think the examples of pedophilia, tax evasion and un licenced gun ownership are completely invalid. We have large samples of known pedophiles etc so it is possible to determine statistical correlates of pedophillia etc. We do not have a large sample of al Qaeda operatives in the USA so we can't use statistics to determine the typical behavior of an al Qaeda operative in the USA. Pattern analysis without data on the phenomenon of interest is impossible. You can guess what the pattern is and find examples but you can't use data to learn what it is.

To me this point is completely blindingly obvious, yet people discuss (and criticize) NSA pattern analysis without mentioning it. What is going on ?

Let's play "spot the lie". This time it's a bit more subtle than Kevin's usual efforts. Here it is:

"But would we be OK with the FBI tapping someone's phone just because they fit a statistical profile?"

See how he just slipped that in there, as if it were true? As if such interception did not require proof of probable cause?

Robert Waldmann: You can guess what the pattern is and find examples but you can't use data to learn what it is.

Empiricists would dispute that. That said, I agree that extreme skepticism is warranted as to whether any reasonable hypothesis is possible given the small number of data points. And in any case, "statistical analysis" of traffic alone cannot yield useful results--it must be correlated with other information.

I've got things to hide: my letters, calls, and conversations with friends, relatives, acquaintances, neighbors, and anyone else with whom I wish to associate. It's none of the government's goddamn business!

Hell, even Cheney has things to hide. Just ask him about that energy task force thing.

"Reading the AT&T/NSA documents published today on Wired, it seems the data collection (all voice and internet traffic, call and email content, etc.), or at least analysis of said data, is being marketed to law enforcement already. Check out the attendees list in the documents on Wired. We also know that biometric analysers and voice capture software is a component of the call tracking."
Posted by: kck on May 22, 2006 at 4:15 PM | PERMALINK

Good point - law enforcement is considered to have a role in "fighting" terrorism. But whether or not they're likely to be engaged in this specific type of analysis, as opposed to being enlisted to help capture terrorist suspects once they're identified, is the big question.

Regardless, I think it's obvious that law enforcement will want to utiltize such techniques where possible/practical to fight run-of-the-mill crime, which is why Kevin has raised these questions in the first place.

am: See how he just slipped that in there, as if it were true? As if such interception did not require proof of probable cause?

Once upon a time a pen/tap register required "proof of probable cause". That is no longer apparently true, nor does it apply to the entire population of the US--the limitations of the PATRIOT act notwithstanding. And as we have also learned, it is baed on justifications of far more expanisve powers asserted by the executive. Your corresponding expansive trust in government would be admirable for its Goldilocks-cuteness, if it were not so ignorant and dangerous.

Well they have our phone calls, our emails, probably our US Mail. Yeah, they got our US Mail too.

It won’t be much longer before they have all our guns. Legal and illegal!

Oops, did I wake someone?

Pass this around and wake everyone.

With all these phone and other statistics obtainable practically at will, just think of the multi-variate regressions you could run! Anyone's name that has a high, statistically significant r-squared association with a certain bank, phone exchange, movie rental or zip code is automatically placed in the "suspicious pool" and becomes a candidate for a warrantless search.

We might as well change the justification for a warrantless search from "probable cause" to "probability cause." We could just automate criminal investigations and kick out lists of suspicious Americans nightly and forward them to the local authorities for follow-up.

This whole discussion reminds me of the infamous "Pre-Crime Unit" in Tom Cruise's 2002 movie Minority Report where police arrested people for crimes they had not yet committed on the basis of visions seen by several psychics.

It also reminds me of racial profiling on the Jersey Turnpike. Ugly stuff.

I think government can protect us just fine without the statistical analysis. So, no, I'm not okay with it.

A statistical likelihood is not the same as probably cause that a crime has been committed. So you would be advocating a significant loosening of the historic legal standard. That's strike one.

The argument that I shouldn't object if I haven't committed a crime is patent bullshit. By that argument, there would be no circumstances under which it would be legitimate to object to the exercise of arbitrary power by the state. That's strike two.

And then there is the Minority Report problem (the short story, not the crappy movie): a statistical profile does not identify criminal behavior. That isn't how statistics works. It establishes a probability of criminal behavior, but that necessarily implies a probability of non criminal behavior, as well as a healthy margin of error. So how likely is likely enough? Treating someone as a criminal because they might be one would seem to require a Constitutional amendment of some sort. And awareness of the statistical profile can alter behavior, with criminals consciously behaving like non criminals while noncriminals never think of it and get persecuted. Among other things, that totally hoses your statistics. Sort of like exit polls. Strike three.

Let's just establish a Dept. of Pre-Crime and get it over with. Your only hope is what the minority report shows . . .

pjcamp,

"So you would be advocating a significant loosening of the historic legal standard."

-- This has already been done by our President and our Attorney General, justified as part of the War on Terror. Warrantless searches are being conducted today without evidence of criminal activity.

Strikes one, two and three.

"[A statistical profile] establishes a probability of criminal behavior, but that necessarily implies a probability of non criminal behavior, as well as a healthy margin of error. So how likely is likely enough?"

-- The subtlety of your statistical argument is probably lost on this administration. They set the threshold of suspicious behavior to whatever they want. If the government decides that for every 1000 people who drive black Toyota Celicas one is a possible terrorist, then everyone driving black Toyota Celicas could be targeted for heightened surveillance.

I like my life!

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Mr. Drum: Don't you ever tire of dropping non sequiturs about "wealthy Republicans" even when the wealthiest people and States are Democratic? Were you taunted by Wealthy Republicans as a child, perhaps?

it's fundamentally a system for identifying criminals by statistical analysis.

Dude, Its so far worse, first of all, this isn`t about criminals! Liking Osama isn`t a crime. And inteligence agencies don`t care about crimes at all. That what law enforcement agencies are for.

Its a system for identifying potential radicals using statistical analysis on data that is based in a cultural and ethnic background.

If people knew only one thing about this it should be that its Racist.

There is a hell of a lot of room for nuance, and you can talk about nuance after you ask yourself this:

* What do properties do I think computers look for if I ask them to give me the people who are are most like Mohammed Atta and Mohammed noor Kahn
* What people do I think make more than average calls to countries like Pakistan, Saudia arabia and Yemen?
* If the program has false positives by design, and thus by design has the NSA asking the FBI to knock on a couple of wrong doors... does that make the White House assurance that this is only about islamic radicalism just an assurance that the false positives won`t be non-muslims?
* If the are hundreds of false postives (thousands of hits and FBI visits, less than ten hits are good enough for a FISA warrant, meaning they are some part of foreign power, maybe not even a terrorist group.) how many of these are white?

The fact that computers decide who is a target "feels" very relevant. After all, every one knows computer are accurate, down to hundreds of digits behind the decimal point. And computers are never Racist. (http://lib.store.yahoo.net/lib/redlightrunner/imaccolors.mov)

They are also very fast if someone asks them to pick a hundred phone numbers from the phone bills of the phones on the phone bill of an Islamic charity. And yes they are accurate, in the sense that the won`t turn a 6 into an 8....

The diffrence between social network analysis based surveilance and locking up japanese has more to do with the diffrence between surveilance and internment than with the diffrence between targetting japanese and targetting callers to Pakistan...

And remember that this isn`t about law enforcement but about inteligence. Inteligence agencies go after a group of radicals because of their ideas, and only when they have a feel for the group start to figure out who in that group could potentially be driven to violence. And not just violence against civilans.

So you should ask yourself this: do I think that the FBI gave up on weather underground and abortion clinic bombers, And do I know anyone who might be making phone calls with suspected members of either?

Now back to the nuanced bit. People pretend phone numbers identify people. If that was ma bells intention then she would have used social security numbers. Courts don`t typically make this mistake. The point is that even if in 99.9% of the cases a phone number identifies a pin protected cell phone that is always carried and answered by the one person whose name is on the phone bills, then people who fear surveilance will still be in the 0.1%. They will use international calling cards, throw away e-mail addreses and disposable cell phones. (The first two are known to be used among islamic radicals, the third one would be a bad choice, but who knows.)

This program may be as much about getting to the people that use these simple countermeasures as it is about that mystical "early warning". If I was Gen. Heyden and I had to give "domestic-to-domestic? sure!" Cheney the "early warning" system that identifies terrorist before they themselfs even know what they will do... then I would sell my unconstitutional disposable cell detection program as precisely that, a magical terrorist finder!

My pet theory is that an importand reason the NSA doesn`t get warrants, not even FISA "foreign agent" ones, is that it doesn`t have a name they would be targetting. They just have a phone number or a throw away E-mail address. You can`t get a warrant if you don`t have a name to put on it. But listening for 45 days is an easy way of getting a name, and figuring if you got an interesting number in the first place.

But the question that everyone will be asking, after answering the previous ones, is what matters more, the historicaly proven (google homework:rasterfahndung) small positive rate or the always big false positive rate?

More practicallay, do I even accept one false possitive, to be send to a black site? and what do I do if I find out this person was innocent?

How's this for a statistical profile: Driving While Black.

Cruder statistics, to be sure, but essentially the same thing. Ask black males how they like being pulled over and interrogated by figety, trigger-happy cops just because the fit a certain profile.

And there is no doubt that bona fide criminals will, occasionally, be caught in this manner. But, absent exigent circumstances, should black males be subjected to this?

In principle, I see no difference between this and the NSA wiretaps. The difference is only one of degree. Maybe the degrees of difference are enough to make it constitutional.

Hmmm...Ever watch the movie, The Minority Report ? (Tom Cruise)

As I recall, the message was that even failproof "technology" was subject to human corruption.

Sound familiar?

"As I recall, the message was that even failproof "technology" was subject to human corruption.

Sound familiar?"

Posted by: bren on May 23, 2006 at 10:45 AM

And thus we get to the core of the problem with this kind of statistical pattern analysis being used to determine whether someone is or is not a terrorist/criminal/liberal Democratic voter. There is no technology I have ever heard of that is not open to being corrupted by human beings in charge of it or even that simply work with it. One of the founding principles of America was innocent until proven guilty with all protections for the innocent left in place until guilt was proven beyond a reasonable doubt. The approach being favoured here is guilty until proven innocent beyond any possibility of doubt. The most amazing part of this debate is hearing those conservatives that used to be consistently opposed to big government with major powers to monitor citizens are now the voices most inclined to surrendering their precious freedom to the State.

America is in big trouble, the fact that this debate is even happening should tell anyone that, this is not a debate that would have happened prior to the Presidency of GWB. Then there is the lack of oversight, as another poster warned, who watches the watchmen is one of the older questions about state powers in human history. Our modern technologies make this question that much more relevant as time goes on. This use of statistical correlation is so inherently dangerous and open to abuse that the idea of it sends shivers up and down my spine.

The NSA program is legal; the president has all the executive power in the United States. Even Sy Hersh will only say it violates the 'spirit' of the law, whatever that means.

Depends on which NSA program we're talking about, but warrantless wiretapping is most definitely illegal, a felony violation of FISA punishable by up to five years in prison and a fine for each offense. And the president has been committing a new offense every 45 days for more than four years now and has pledged to keep doing so. (BTW, the "Article II war powers make it legal" argument is disposed of quite neatly in the Supreme Court's Youngstown ruling, which basically says that neither in war nor in peace can the president do something Congress has specifically banned.)

Obviously, terrorists don't send thank you letters to the NY Times (even though they should), so 2) is difficult.

Translation: "I'm pulling this out of my *ss."

However, that's one of the function sof court; it can act as the finder of fact. If it turns out that any given disclosure didn't mean 2, then the result would be an acquital.

This opinion presumes there is probable cause to file charges in the first place. Under current law there is not, and there's no pressing reason to change the law.

Of course, the standard would have to be beyond a reasonable doubt. (Wow, I'm such a nazi!).

No, just grossly ill-informed and making arguments for which you have no basis in fact or law. But don't worry. At least 29% of your countrymen are prone to the same failing. ;-)