Richard Posner makes a startling leap in this op-ed from today’s Washington Post: Our Domestic Intelligence Crisis [pdf]
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
[...] The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
Totally aside from the question of “overreaching” that infuses not only this article, but also the general discussion of the President’s domestic surveillance order, I had always thought that the question is the problem that, once collected, data finds all sorts of uses and is claimable under all sorts of legal constructions. I’m surprised to see a claim that data use will be “limited.”
Later: Robert Byrd’s speech on Dec 19th: No President Is Above the Law [pdf from CongRec]
Later: Posner’s online chat at the WaPo on the subject of this op-ed.
Even later: apparently an even more sweeping effort — Spy Agency Mined Vast Data Trove, Officials Report
Later: NSA Data Mining Much Larger Than Reported
Later: Harvard’s Charles Fried tries to find a middle path: The case for surveillance [pdf]
Later: The NYTimes’ Public Editor on getting a runaround - The Public Editor: Behind the Eavesdropping Story, a Loud Silence