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liveoaktx postes the question, what do we do about this, to safeguard our rights and update to law to do so when data mining of the US call volume has (may have) replaced a pair of wires owned by the telephone company from your phone to their switchboard.
It almost seems dangerous to speak too soon, for my part because in addition to not being a domain expert on data mining or the intelligence community, I'm also not one on civil rights and constitutional law. And there really needs to be some cogent thought, by people with the qualifications to give them enough context to think eloquently about it, regarding how the old right of an individual identifiable by name and address to be safe from having his papers rifled unless a judge thought it was needed, translates to a time when he exists as the owner of several phone numbers, each of which drop a little stream into the data river every day, where the NSA's sluice gates filter all the water for mines, pollutants and predators. (I'll stop with the poetry now.) We saw what happened when Congress tried to regulate content on the internet: it was amateur hour, and disaster in the form of Jimmy Exon's ban on the Carlin words if they could reach the delicate ears or eyes of those underage was averted only by some first rate activists, employing some first rate lawyers of national stature (and being no slouches on the subject of civil rights law themselves). We have a similar challenge here: there is complex new technology present which changes the language we use to talk about a subject, in this case surveillance, and we need some first-class reasoners who also have the background to allow them to think accurately about the subject to consider the implications of something that really does deserve the name paradigm shift. Further, at least some of them need to be people for whom the subject is close to heart; they need to treat it not as an academic abstraction in the UChicago mode, but as a life matter which affects us all with immediacy. It's about the future of our nation and our culture, and those who take it upon themselves to contemplate solutions need to act like they understand that.
I'll propose a pass at an ideal solution: in an ideal democracy, the people as one of the estates of the nation understand that they are the first estate, that the nation, and its government, and its society, are manifestations of their will, and their communal desire to live in a particular way. Those of their number who hold government office understand that they have chosen to serve their fellows, and will be held to a high standard of ethical behavior, and reticence in using power their fellows have sanctioned them to hold. They will willingly live up to this standard, and their fellows in the mass public in turn assume that it is a given that government acts in the interests of the People, since it is Of, By, and For them.
Take this ideal democracy (which really just requires a culture which understands the values of the Enlightenment which deleted absolute monarchies from Europe, and which values civic life and communal application of another valued commodity, intellect shaped by good education, to the problems of the community) and place it in a context in which it is threatened by infiltration by groups made up of foreigners and disaffected citizens who intend to do it tangible harm, by destroying property, killing people, and negating the quality of life of peaceful civil society. Among other difficulties, the ideal democracy is confronted with the apparent contradiction: use technical means to acquire information about activities of the subversives from within the country's domestic space. But do not treat the innocent citizens of the nation as though they were criminals, and do not allow data acquired about them inadvertently to be misused.
The citizens of the ideal democracy will expect the latter constraints as a given; the Enlightenment recognition of basic civil rights, including to privacy, as inherent, which was codified into law, has become a basic cultural value, and the country would in fact grind to a halt if a government came to power which attempted to undo this recognition and make rights a granted privilege or some such. The members of government of ideal democracy understand this, and since they are citizens of the nation too and share its cultural values with their fellow citizens, they would not undertake to do anything which would hazard those bedrock individual rights. Being effective thinkers, they note however that they need to codify any solution they come up with, because modern societies codify the abstractions on which they base their structural members, and because even though the cultural assumption may be that certain fundamentals are implicit, smart societies don't live according to unwritten rules, and this is a smart society.
Given all this, the ideal democracy now concerns itself with the practical specifics of the domestic surveillance problem. Communcations are ubiquitous, and hard to quickly associate with an individual. The data stream associated with a telephone conversation may be moving among cell towers and crossing provider (company) boundaries, it may be packetized and pushed onto the internet, etc. Cell phones can be bought in disposable form for $10 with no reliably enforced requirement for buyer identification, i.e. no reliable way to link conversation endpoint to individual identity. Data networks allow massive data movements with great difficulty again in binding conversation content to particular individuals. Where once people had mail and telephones, and telephones were a box hanging on the kitchen wall with two uninterrupted wires running to the local switching office and a human operator who made connections on request, i.e. identity was key, the problem now is oceanic quantities of communications content, with ubiquitous and heterogenous access points, with only spotty opportunities to link it to people originating it. Yet the content is still out there, the voice streams containing "red frog is a go" and "wow man, I went to the mosque last night and the imam was really pissed off, we all signed up to go to Pakistan this summer" are lying there for the taking.
I.e. where once the human was the most easily accessible object in the criminal complex of actor, means, place, etc., now the communications among the participants in a criminal enterprise are. The evidence is there, and the legwork is in binding it to the people it refers to, rather than the people being easy to find and the legwork being finding evidence of their malfeasance.
The ideal democracy notes all this and reflects that in order to effectively control the subversives, it really needs to be able to act on that ocean of evidence - find the material that raises flags, then find out who produced it. It knows that the technology exists to gather up all communications with one or more endpoints in its physical borders, and filter it for interesting content. And it is brought full circle back to the question of safeguarding of inherent civil rights - the right to privacy, and the right as it was so eloquently put once (can't remember by whom) to be left alone. The contradiction is between vacuuming up the ocean of communications content for the sake of the nation's safety, and thereby implicitly compromising the privacy of its citizens. Further, the solution to the contradiction needs to be codified and be substantial enough to withstand judicial and legislative review, including tests of constitutionality.
Ideal democracy now ventures into a complex realm. It chooses to reason that the tangible effect of a violation of privacy is that information which a person considers confidential is used to coerce or harm them - to shame them publicly or among their acquaintances or in their interactions with government, to extort obedience or political adherence from them, to aid their economic competitors, etc. I.e. that private information is disclosed inappropriately. Ideal democracy notes that if its government chooses to avail itself of the information in the communications ocean, it must create clearly substantial, publicly visible safeguards which will accompany the vacuuming program which will be seen to ensure that government will exercise its exclusive sanction to access citizens' private data anonymously, and in a sealed space. The data will only be made available to agencies tasked with missions which justify its consumption. So that for example, a strip club owner will not be investigated for tax fraud under the auspices of the national security surveillance program, nor a peaceful dissident group for their pronouncements, both of which happened under the PATSY Act. Structures for oversight and continual review of data acquisition and use will be made public and will be made substantial enough to withstand both public and experiential scrutiny. Control of data movement is ensured by both technical (you can't move it off this server) and procedural (you have to sign for that volume) safeguards. If data is classified, provision will be made to generate unclassified summary data from it which will be publicized. Priority given to informing the public will be equal to that given to protecting security. Lastly, penalties for misuse of citizens' private data will be clear and harsh. Immediate dismissal from government employment, criminal prosecution and liability to civil suit for both the active parties, their supervisors, the executives initiating any organized programmatic misuse, along with internal and external auditing of the offending department and agency will all deter against misuse of acquired data to the maximum possible extent. The legislative branch of ideal democracy's government is given the oversight role over the program and is tasked with establishing the classified/unclassified partition to be able to succeed in its mission of delivering accountability results into the unclassified public realm.
The public of ideal democracy is not enthused about sanctioning its government to acquire their private information, but it knows that it controls the government, that its representatives to the organs of government will act according to the public's expressed interests, and that in short it has the power to hold government accountable for appropriate use of the sanction and trust it has given government. The data vacuuming operation proceeds, and while there are a few unfortunate incidents in which government employees abuse their access to classified data, they are quickly dealt with, the victims are compensated, and the events are few and far between. Aside from regular oversight reports to its representatives in government, the public is largely unaware that its personal communications are filtered for content. People have no concern that government will occupy itself with their sexual habits, political affiliations, choice of underwear or favorite toothpaste. Because it doesn't. Because it wouldn't, because government represents the best of the nation's culture, and because those in government understand that they are answerable to the people, and that the legal system makes that responsibility sharply tangible. There is an understanding that in a civil society, the people who partake of it are responsible for obeying rational laws made by their rational fellows, and that the government which safeguards its interests exists only to serve its interests.
Like I said, an ideal democracy. Not so far fetched on the other hand. What I'm basically describing are data protection laws in a rational society - rational societies meet new conditions by application of intellect rather than force, which is subservient to intellect. It would be nice if we here in the US were up to that challenge.
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