January 06, 2006
"Probable Cause" is a Software Specification
The recent discussion of the legality of NSA intercepts has put the general concept of computer surveillance back on the table. The question is whether it is okay for the government to "data-mine" large public communication flows or databases for criminal or enemy activity. Put more directly, the questio is what is the nature of "probable cause" in an era of high speed data communication and large computerized databases.
In the past cops had beats, watched places to which they had access,
learned the patterns of the people in those places, and defined
exceptions to those patterns as probable cause which when approved by
a judge would entitle them to investigate further.
Today, it is data that travels rather than people. Police need the
same broad power to observe standard patterns of behavior that they
have always had. Because humans can't manually process all of this
traffic, they need software to do so. The definition of probable
cause in these cases is therefore embodied in the software used to monitor data networks and search databases. A judge should be able to approve the software a-priori, in which case all results of using this software are automatically approved. Or a-posteriori, in which case, the authorities run the risk that a judge may require that all results must be excluded from evidence (just like any
other evidence obtained without a warrant).
In other words, for modern databases and communication networks, a
search warrant should not need to specify the entity to be searched it should specify the query/program needed to determine that entity.
Posted by Alex at 11:23 AM | Comments (1) | TrackBack (0)
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Comments
hmm. The cop on his beat is visible to his community unless otherwise authorized... should the NSA software in question then become open source?
The problem with saying 'no' is that if your assumption that the dataspace is an extension/replacement for the physical community is true, then the substance of what constitutes 'probable cause' (i.e., the utterance of 'exceptional' language that would meet the criteria of the NSA query) should presumably be public information.
At the very least, in the interest of open (and non-corrupt) governance, we should want a dynamic by which a potentially intrusive commander-in-chief who says "We listened in on Christiane Amanpour only retroactively because her end of a cellphone chat came up in a search for the conversations of some problematic Afghani warlord" could have been counterbalanced by Amanpour's foreknowledge that her political phone communications with Jamie Rubin would not be considered private because she was acting 'exceptionally' in interviewing a particular warlord.
Eventually, the current use of datamining by the NSA cedes the power to define the standards of public communication to the worst elements of the beat; the terrorists who get control of whether the phrase "the fat man walks alone" is probable cause, and potentially corrupt influences in government whose access to specialized technologies enable their misuse. People in betwixt have less information than they had available before.
If everyone agrees that the ability of terrorists to have access to secret communications is a problem, and that misuse of government power is a problem, then making the NSA a lot more open seems like not the worst idea in the world. Obviously, the public gets a lot less electronic privacy in this alternative and you'll be marketed to a great deal more.
PS (I think FISA warrants could already have been granted retroactively, which makes the position of the Bush Admin all the more bewildering to me, especially if they had at least a year to anticipate this comng out in the NYT and WaPo)
Posted by: ooghe at January 7, 2006 02:55 PM
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