Editore"s Note
Tilting at Windmills

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May 23, 2006
By: Kevin Drum

DATA MINING UPDATE....Yesterday I noted that the NSA's domestic spying program was "a system for identifying criminals by statistical analysis," and suggested that Americans need to decide if they think it's appropriate to launch police surveillance on people simply because they fit a statistical profile. Today, Noah Shachtman points to a USA Today article that says that's exactly what's happening:

The template, officials say, was created from a secret database of phone call records collected by the spy agency. It has been used since 9/11 to identify calling patterns that indicate possible terrorist activity. Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan.

Now, this might very well work. But Eric Umansky links to First Amendment lawyer Floyd Abrams, who was on a panel a couple of years ago that advised the government on privacy issues. Abrams zeroes in on the real problem:

We basically said if you want to engage in data mining, which we said was a very good way to gather information to fight terrorism, you should go to the FISA court to get permission. You should go to the court established by Congress and get an OK from the court to do so, and if if you didn't think that was the right way to do it, you ought to go to Congress and get them to give you more authority to go to that court and get permission.

That's exactly right. The Bush administration can't keep this out of the courts forever, and if they continue to refuse to ask Congress to modify the law, there's a good chance the entire program will get tossed out eventually. That's what just happened in Germany's highest court:

In a decision made public today, the justices stated that foreign policy tensions or a collective threat level such as after the attacks of 9/11/01 do not suffice to permit the dragnet/grid/screen [i.e. data mining] searches....The justices found that officials [seeking to do data-mining] must have put forward concrete grounds to believe there will be foreseeable attacks in Germany.

Computer-based searches might very well be an effective way of tracking down terrorists. They might also be an effective way of tracking down lots of other criminals. But if that's the case, Congress and the courts need to set down clear guidelines and clear oversight for how it can and can't be used. The executive branch can't be allowed to decide unilaterally what's legal and what isn't.

The implications of this stuff are pretty far reaching. The American public and its representatives need to stop hiding from it and decide exactly how far they want it to go.

Kevin Drum 6:55 PM Permalink | Trackbacks | Comments (49)

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Comments


Also a good way to track down Democrats. Someone has to explain how a data base containing the number of times I call Duane's House of Pizza frustrates bin Laden. Useful information for the war on obesity perhaps, terrorism, no.

Posted by: john s. on May 23, 2006 at 7:06 PM | PERMALINK

You mean the lobbyists and their paid representatives need to decide exactly how far they want it to go don't you?

Posted by: ExBrit on May 23, 2006 at 7:06 PM | PERMALINK

OInce again, you are touting the gee-whiz benefits of high-tech data mining and therfore impling that it's a reasonable justification for unconstitutional search and seizure.

When are you going to understand this simple fact: The government has no business accessing the data in the first place without a warrant - regardless of what they will or might want to to with it.

What's more, the Constitution does not allow warrants to be issued against unnamed millions of people. Warants have to be specific, naming the target, what is being searched for, and why. It would be unconstitutional for a FISA amendment to permit wholesale grabbing of Ameriucan's data.

Read your 14th amendement. Until then, stop being a stooge.

Posted by: Libby Sosume on May 23, 2006 at 7:09 PM | PERMALINK

NO! We can't use police tactics to catch terrorists.It has to be the Army to take care of Terrorists.Dumb asses Police tactics just don't work.

Posted by: then on May 23, 2006 at 7:12 PM | PERMALINK

Kevin seems to be too much of a fan of data mining to be objective about it in this context.

Posted by: lib on May 23, 2006 at 7:12 PM | PERMALINK

Good job, Mikulski, Feinstein, Rockefeller and Levin (!) falling all over yourselves to kiss Hayden's military hardware today. Jerks.

As usual, congratulations to the people of Wisconsin on having Russ Feingold. Too bad only Bayh and Wyden joined him.

Posted by: shortstop on May 23, 2006 at 7:13 PM | PERMALINK

"Unilaterally" is a word with some resonance. After saying it you might then say

"we have three branches of government."
"fighting terrorism is important.'
"congress has played an important role in the war on terror."
"congress has a constitutional role in addressing these problems of national import, that go to the heart of our constitutional protections," etc.

And, sigh, you'd be a Cassandra in the wilderness, barking up the wrong tree after the horse has left the barn.

Posted by: MaryCh on May 23, 2006 at 7:15 PM | PERMALINK

That must be where all the inside info came from on John Kerry,I knew somthing was fishy with Fox's Karl Cameron, knowing Kerry was going to get a peticure.This program works great for re-election.

Posted by: Now on May 23, 2006 at 7:16 PM | PERMALINK

The implications of this are as exciting as the DARPA inspired invention of the internet itself.
With a MIT Open government style database , a citizens ' Totalitarian Information Agency' if you will then the peoples of the whole wired world will have access to a distributed secure database that could contain all known information on them and on everyone else. The encrypted data being kept in constant massive reamiler motion the only way to access the information would be through processes that respect the inalienable forth ammendment right. A netizens private data ' home' is their castle.
With the net itself and a citizens intelligence agency such as this then all that would be needed then is the pentagon discarded PAM plan to enable a rapid move to an entirely new international law-enforcement paradigm. One based on market forces and one firmly based on the net.
This shift to a new political paradigm will throw a lot of puffed up political pundits straight out of work. Maybe they will be able to get honest work as male prostitutes or something but who cares about them!
It's morning in the internet.

Posted by: professor rat on May 23, 2006 at 7:18 PM | PERMALINK

What part of "Probable Cause" do they not understand?

Posted by: Osama_Been_Forgotten on May 23, 2006 at 7:21 PM | PERMALINK

lib, you get it.

Someday Kevin will be musing about how the GPS locators in many new cars might show patterns of movement that could anticipate a terrorist attack -- and whether the FISA law ought to be amended to include mining that data.

How about motion detectors? Or even tiny cams in every home. Now that might anticipate a lot of crimes beyond terrorism. (Cue Tom Cruise and the pre-crime unit.)

"The American public and its representatives need to stop hiding from it and decide exactly how far they want it to go."

Once you abandon the bedrock princuiples of the Constitution, it's no longer a question of how far you want it to go. It's a question of where, or even if, you can stop it.

Posted by: Libby Sosume on May 23, 2006 at 7:23 PM | PERMALINK

Apparently Libby Sosume has never read SMITH v. MARYLAND, 442 U.S. 735 (1979).

Posted by: Al on May 23, 2006 at 7:29 PM | PERMALINK

Floyd Abrams is wrong.

Data mining is not a "very good way to gather information" for any purpose, since it is not a "way to gather information".

It is a thing you do with information you already have access to. You don't need a warrant to data mine, you need a warrant to invade areas protected by the Fourth Amendment in order to gather data, whether you are then going to "mine" it, or simply examine it directly.

Now, data mining is, pretty much by nature, something that you don't have probable cause when you are considering using and, thus, if it relies on access to material protected by the Fourth Amendment, it is almost categorically unconstitutional.

Computer-based searches might very well be an effective way of tracking down terrorists. They might also be an effective way of tracking down lots of other criminals. But if that's the case, Congress and the courts need to set down clear guidelines and clear oversight for how it can and can't be used.

Insofar as it is Constitutional at all, I'm not at all convinced that existing law governing the gathering of the information to be fed into a data mining system is inadequate. Certainly most of the issues that have been controversial recently seem to involve gathering information in flagrant violation of existing law, so creating new law -- rather than holding the executive accountable to the existing law -- seems guaranteed to be useless.

Posted by: cmdicely on May 23, 2006 at 7:43 PM | PERMALINK

Apparently Al thinks the Supreme Court has never been wrong. Glad to know that. Make a note everyone: Al thinks the Supreme Court has always been correct, which would presumably include Roe v Wade.

Even if the case was correctly decided, apparently Al thinks there is an equivalence between a single, specific suspect, and the records of millions of Americans who are not already under suspicion.

And even if there were such an equivalence, apparently Al has not read FISA which disallows warrantless spying on Americans.

Posted by: Libby Sosume on May 23, 2006 at 7:43 PM | PERMALINK

Soon the government will be using regression analysis and other statistical techniques to predict who is likely to commit crimes - then, jail them preemptively.

The path our government is treading leads to totalitarianism.

Posted by: Stephen Kriz on May 23, 2006 at 7:44 PM | PERMALINK

cmdicely gets it, too.

Posted by: Libby Sosume on May 23, 2006 at 7:45 PM | PERMALINK

Data mining and phone taps...

Assume that the Admin doesn't tap domestic to domestic calls.

Assume also that we tap any foreign call. We don't mind our govt spying on 'other' people.

What if a foreign govt spied on our phone calls...

...and gave this information to our govt.

Would it be illegal for the US Govt to accept such information on it's own citizens if the source is a foreign govt???

Posted by: Fran on May 23, 2006 at 7:48 PM | PERMALINK

Do our intelligence agents need more garbage to sort through to stop the next terrorist attack? The claim that we need wiretapping is a distraction. Realize that we had more than enough intel to have stopped the 9/11 attacks (without the NSA wiretap program). The problem was/is the failure to use the information. That is where the effort needs to be placed. Do you really believe that having a database of common calls will make the country safer? (btw- Libby is right.)

Posted by: roscoe on May 23, 2006 at 7:48 PM | PERMALINK

So if someone calls from the Old Country and says "Grandma's sick, if you any of the others ever want to see her again you should come home" or "Your sister had a baby boy!" and this is followed by a flurry of calls to other family and clan members in the US you are a terrorist?

Posted by: Mimikatz on May 23, 2006 at 7:52 PM | PERMALINK

I'm curious as to what Kevin would think about this if the data was encrypted. They could do as much data mining as they want based on anonymous encryptedrecords, but the records could only be decrypted with a court order. That seems like a reasonable compromise to me.

Posted by: Mr. Turtle on May 23, 2006 at 7:52 PM | PERMALINK

The real thing is, Republicans don't trust us. They don't trust our institutions, they don't trust our society, they don't trust our people not to all of a sudden turn Spanish --they don't trust anything about the United States or anything about how the law, government and people of the United States work.

Posted by: cld on May 23, 2006 at 7:54 PM | PERMALINK

Fran wrote:

Would it be illegal for the US Govt to accept such information on it's own citizens if the source is a foreign govt???

Fran, it would constitute a crime to not bring the purpetrators of violations of US Laws, committed on US soil, to justice--obstruction of justice. Now...what was Ney saying?

Posted by: parrot on May 23, 2006 at 8:03 PM | PERMALINK

Mr. Turtle,

That's pretty much what the NSA was planning on doing -- until 9/11 and the Bush administration. They had designed (and presumably built) a sophisticated system that could capture all this data but keep it under lock and key until and unless a valid court order unlocked it.

Then the Bush administration found out and said doit it, but forget the lock and key.

Posted by: Libby Sosume on May 23, 2006 at 8:06 PM | PERMALINK

Such searches are more than just a good way to identify criminals and terrorists. They are also an excellent way to identify political opponents, and to determine who they are communicating with.

Imagine the network of calls a politician might have. Who is contributing funds, and where are they being banked? Who is doing polling? (Want to fake a poll for them? Know who is doing it and when.) Want to know which active politicians are working with which groups? Check the network of calls, both directions.

This doesn't even skim the surface. This is a tool that is ideal for the kind of single party authoritarian government that Bush/Cheney, the Dominionists, and others would love to install. The Republicans already have a tactical advantage in elections based on their data-mining of available commercial databases.

The reason for judicial oversight is to make sure that the people searching for threats to America aren't just preventing their political opponents from getting legally elected.

Posted by: Rick B on May 23, 2006 at 8:06 PM | PERMALINK

The thought that "the Bush Adminitration can't keep this out of the courts forever" is comforting, but how is it supposed to get there? The Gonzalez Justice Department sure as hell isn't going to go digging, the Intelligence Committee won't swear people in, and the government asserts states secrets over 3rd party lawsuits. Somebody help me out here. How do you even know if you have standing to sue?

Posted by: Andrew B on May 23, 2006 at 8:19 PM | PERMALINK

Libby Sosume gets it.

Anybody answer me this. The Repubics keep bringing up Smith v Maryland, appealed March 1979. Reading this ruling seesm contradictory to FISA.

So did the facts of the case predate FISA and it's just no longer a valid case to apply? 'Cos everything else until Bush seems to fall in line.

Lawyer please!

Posted by: notthere on May 23, 2006 at 8:35 PM | PERMALINK

That's exactly right. The Bush administration can't keep this out of the courts forever, and if they continue to refuse to ask Congress to modify the law, there's a good chance the entire program will get tossed out eventually. That's what just happened in Germany's highest court: . . .

Betta you can't wait for Justices Kennedy, Ginsberg, Stevens and Sutter to apply the reasoning of the German court or the insight of the judges in their deliberations over the constitutionality of these issues.

As I said on previous post, the proper venue for resolution of these issues is Congress, not the courts. If the elected representatives of the American people don't object to the President's actions, then it's inappropriate for the judges to question that decision. If you can convince a majority of the House that the President's actions are unconstitutional, then the proper remedy is impeachment. Not to run to court and hope to get a majority of the Supreme Court to agree with you.

Posted by: Chicounsel on May 23, 2006 at 8:39 PM | PERMALINK

Chicounsel --
unconstitutional actions by the President do require impeachment which is and should be a high hurdle to cross. Written law falls to the courts and that, rightly should be the first step.

However if the executive keeps using state secrets privilege to thwart the testing of the law, or changes its own rules and charges for holding prisoners for doing same, I think there's a case that justice is broken.

Posted by: notthere on May 23, 2006 at 8:54 PM | PERMALINK

So they've been doing this for nearly five years--then it's another example of W administration incompetence. They haven't caught anyone, their prosecutions have been singular failures, and on the (correct, I think) presumption that they're using the program to try to find leakers--they've also been unsuccessful there. It boggles the mind that they have all this illegaly acquired information & can't do anything with it, even to their enemies.

Posted by: anonymous on May 23, 2006 at 9:00 PM | PERMALINK

Given the "intelligence" services penchant for rendering and torturing people before establishing a fact base, heaven help the hindi or islamist visiting the US who gets news of a wedding of death and starts calling all over telling his relatives.

The whole "cell" will be flying first class, no charge for sedatives, in a Gulfstream to their pre-booked reservation at the deep suite with no sunlight, solitary occupancy. Lucky them.

Of course, if it's a US citizen of the same name, no problem. Same service.

Posted by: notthere on May 23, 2006 at 9:06 PM | PERMALINK

Cheney--
don't think you're a lawyer. If the original case predated FISA, FISA would not, I think, apply. You do the math.

Read the case. Telephone calling records were ruled OK. FISA is very speciific that collecting calling records still requires cause and warrant.

Question still stands.

Oh, and by the way OLC or AG, doesn't seem to matter. They seem to have a very liberal interpretation of the law. Sorta split personality don't you think? Not something Repubics have otherwise been looking for.

Posted by: notthere on May 23, 2006 at 9:19 PM | PERMALINK

Apparently Al thinks

well, there's the first problem with yuor argument. try rephrasing that as "Al's latest RNC memo says..."

Posted by: cleek on May 23, 2006 at 9:39 PM | PERMALINK

Uh so what if the court tosses it out? What was it Andrew Jackson said...?

"Now let them enforce it."

Posted by: MNPundit on May 23, 2006 at 9:59 PM | PERMALINK

Kevin
I don't understand why you seem willing to believe that the NSA program might actually work. The NSA has powerful computers and a huge data base, but their guess that "flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan." are indicative of an Al Qaeda operative is just a guess. There is, as far as I know, no evidence whatsoever which supports this hypothesis. In particular, since there are, as far as I know, no known al Qaeda sleepers in the USA the association of the pattern and al Qaeda sleepers is based on a sample of zero observations. The fact that after making that guess the NSA crunches terabytes does not reduce their reliance on the original guess. A calculation based on a bad assumption will not yield an accurate conclusion (this is a case of gigo). I really think that many people are awed by the power of computers and willing to believe that they can do the impossible, that is, accurately describe something which has never been observed.

Now, as to the case of Kevin Drum, I understand that you always write that the NSA approach *may* work, *might* be useful, and must be regulated by law *if* it works.

[edited to avoid boring readers to death. More at my blog (each post of which crosses the US border and is presumably intercepted by the NSA and I personally would have no problem with that if it were legal)]

Posted by: Robert Waldmann on May 23, 2006 at 10:03 PM | PERMALINK

there are, as far as I know, no known al Qaeda sleepers in the USA

pretty big assumption.

Posted by: cleek on May 23, 2006 at 10:10 PM | PERMALINK

Do you think the House would take it's oversight responsibilities more seriously if Al Qaeda agents were to start phoning them on a regular basis from Pakistan and Afghanistan? Now that's something to wonder about!

Posted by: roksob on May 23, 2006 at 10:16 PM | PERMALINK

"Soon the government will be using regression analysis and other statistical techniques to predict who is likely to commit crimes - then, jail them preemptively."

Yeah, and then we'll all be like in a Tom Cruise movie. Wasn't that the premise of Minority Report?

Posted by: Ducktape on May 23, 2006 at 10:44 PM | PERMALINK

unconstitutional actions by the President do require impeachment which is and should be a high hurdle to cross. Written law falls to the courts and that, rightly should be the first step.

Posted by: notthere on May 23, 2006 at 8:54 PM | PERMALINK

notthere:

The high hurdle required for impeachment is the same as every other bill in the House, a simple majority. If the Dems really believe that Bush is acting unconstitutionally, then they should campaign on that issue saying that they will impeach Bush if given the majority by the voters.


As to the courts being the proper first step, one should remember that apart from the Supreme Court, every federal court, including the FISA court, is a creation of Congress. The law creating the FISA court could be repealed tomorrow. Also, Congress could withdraw the federal courts' jurisdiction over anything having to do with the activities of the NSA. So the ultimate authority over a President's action is the Congress, which is what the Founders intended.

Posted by: Chicounsel on May 23, 2006 at 11:08 PM | PERMALINK

What part of "I'm no lawyer", "FISA was signed in 1978" and/or "this case was decided in 1979" do you not understand?

Posted by: Cheney on May 23, 2006 at 9:51 PM | PERMALINK

OK, Lawyer hotshot. I always understood you could not be found guilty of a crime which was not a crime at the time you committed it. Goes against sense to be found guilty of a crime you could have no knowledge of.

So, as asked, or, preferably, some one with real knowledge, Smith v Maryland and as it is relevant today.

Oh, what is it? Divorce?

Posted by: notthere on May 23, 2006 at 11:22 PM | PERMALINK

Sorry. Personal Injury? . . . No. Wait . . . Patent? . . . Oh, I give up. Do tell.

Posted by: notthere on May 23, 2006 at 11:29 PM | PERMALINK

Regardless of dates, FISA overrules the Supreme Court, and here's why. The SC ruling only said that the constitution did not protect this man's phone records. But since 1978 FISA law does protect phone records. Since the case originated before 1978, it didn't help this guy.

Moreover, FISA was passed specifically to apply to the the stuff NSA does, i.e. national security.

So, while the SC ruling does seem to defeat the argument that NSA is acting against the Constitution, it doesn't change the fact that the Bushies are breaking the law.

I have a feeling though that the SC would rule differently today based on the facts and circumstances of what the NSA is doing, because the NSA's program is vastly different in almost every respect.

-- massive: millions vs one guy
-- no prior suspicion of crime
-- data used to discover crimes, not solve them

Posted by: Libby Sosume on May 24, 2006 at 12:30 AM | PERMALINK

Libby Sosume
thanks for the clarification. Yes, I understand the difference of the broader net and no cause.

Posted by: notthere on May 24, 2006 at 12:42 AM | PERMALINK

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Posted by: biu991 on May 24, 2006 at 12:44 AM | PERMALINK

Have you been following commentary on the BBC ? http://news.bbc.co.uk/2/hi/europe/5005754.stm
http://news.bbc.co.uk 2/hi/americas/4996798.stm
http://news.bbc.co.uk/2/hi/americas/5006060.stm
http://news.bbc.co.uk/2/hi/europe/5005472.stm
Just thought maybe you should get out more.

Posted by: opit on May 24, 2006 at 1:23 AM | PERMALINK

Hang on:
Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan.

This is going to pick up _every_ Pakistani immigrant to the US who still has relatives or friends back home - nothing could be more common than getting a call, then calling cousin Majnid & cousin Sisna to pass on the gossip

Posted by: firefall on May 24, 2006 at 6:29 AM | PERMALINK

They might also be useful for monitoring political opponents. What proof do we have that the Bush political operation is not using this data for political purposes? If they cannot prove they are not using the data for political purposes, they lack adequate oversight.

Posted by: bakho on May 24, 2006 at 9:05 AM | PERMALINK

firefall--just what I was thinking:

"Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan."

Jesus Christ on a crutch--no wonder we keep on blowing away so many wedding-parties with Specter gunships and JDAMs. Every one of them was on the initiating end of a "pattern" of phone-calls that led to a "flurry" of domestic calls.

You call about weddings, you call about births, you call about all sorts of stuff. And so you get labeled a terrorist, by some programmer who doesn't know squat about terrorism.

This is the magic of data-mining? This is just pathetic.

Posted by: ali on May 24, 2006 at 10:52 AM | PERMALINK

ali,

Like most 'magic' data-mining becomes mundane when you know the details.

I've done some previous work with rules-based expert systems and it never actually amounted to much.

Really. Imagine that you have all the US calling records at your disposal and you can do infinite queries in zero time.

Without some kind of starting point or real world data how do you go about identifying suspected terrorist?

Receiving calls from certain countries is easy, but what 'filters' or 'rules' do you use then?

Seriously.

If you knew for a fact that phone number A belonged to a terrorist you could track who he called and then who each of them called, etc but without the starting point how do you know where to start?

Posted by: Tripp on May 24, 2006 at 12:14 PM | PERMALINK

Well, notthere, I'm no lawyer

Funny....Charlie/Cheney used to claim to be a lawyer, and used a law firm's email address back in his "Charlie" days.

Of course, he/she/it's a liar in every incarnation, so put little stock in this statement.

Posted by: Gregory on May 24, 2006 at 2:33 PM | PERMALINK




 

 

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