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Wednesday, February 01, 2006

The NSA Flap: Datasifting For Dummies

This is a followup to a previous post, which referenced an excellent discussion of Carl's at No Oil For Pacifists and this FISA court decision from 2002. Dingo chimed in on the comments and is blogging about the issue and Tommy has had his say in I Can't Stand The Stupidity Any More (my title, not his).

If you are interested in civil liberties and staying alive, it's important to understand datasifting and the reason that FISA's structure cannot be applicable to such programs. When Bush said:
"The FISA law was written in 1978. We're having this discussion in 2006. It's a different world. ... I said, look, is it possible to conduct this program under the old law? And people said, it doesn't work in order to be able to do the job we expect us to do."
... he was not being flippant or disrespectful of the Constitution. He was being accurate, and he is unquestionably right. To understand why you have to understand datasifting and its implications, plus a few basics about FISA. But this is not a complicated problem, unless, apparently, you are a lawyer who does not understand computer programming. Apparently Carl's love of logic and Venn Diagrams has saved him from that dire fate.

First FISA. The NSA flap is over the disclosure that outgoing or incoming communications to/from foreigners suspected of being terrorists were at times being monitored without a FISA order. A FISA order is like a warrant; the government lists the reasons why the government wants to screen communications going to or from a certain number; the FISA court looks it over and says yea or nay. This structure was set up in 1978.

Datasifting was not a very worthwhile technique back then, primarily because we did not have the computer power and all the infrastructure set up for it. Now we do. Private companies use datasifting. I refuse to discuss the details, but datasifting involves searching through massive, massive amounts of data in order to find certain patterns. Datasifting programs are astonishingly efficient BUT THEY ARE NEVER DETERMINATIVE. When used to identify possible criminal behavior, a datasifting program will spit out a list of possibles. From 20 million you might get four to two thousand. Of those few thousands, maybe two hundred deserve real attention and investigation, but you have to narrow down that list.

How do you do that? You collect more data on those few thousands. The ones in which the pattern is confirmed are now spit out in a ranked list, and humans will now start investigating. These types of programs are used in banking all the time to catch certain illegal behaviors. I'm not going to give you an example, because some dingbat out there would read it and probably try to commit one of these crimes, and I'd hate to be responsible for yet another stupid person sitting in an expensive jail cell. Because - this is my point - we would catch you. We would catch you because we are datasifting. We are datasifting because the government has told us after 9-11 that we have to. We mostly catch stupid criminals, but we do catch potentially highly dangerous transactions also.

Now consider FISA, and the implications of the demand for probable cause. By definition the first sift has no probable cause. In the next sift you do not have probable cause, but you need to monitor communications in order to screen out most of the sift. It is only when humans start looking at the final list that they will probably be able to collect enough evidence to present a judge which will result in an order allowing full monitoring. Mind you, almost all of this is done purely by computer programs. No one ever sees it, no one ever hears it, and unless you are in the habit of writing love notes to Al-Queda operatives, no one ever actually listens to your calls or reads your emails.

In fact, datasifting is often used merely to aggregate patterns and establish normal bounds. When those normal bounds are exceeded, then something warrants investigation. Datasifting is used to find that proverbial needle in a haystack or at least tell us which square foot of haystack should be sifted. But the non-determinative nature of datasifting prevents us from checking the short list unless we are allowed to do actual close sampling.

Datasifting is utterly incompatible with the FISA structure. Utterly. Completely. Absolutely. Incompatible. You can datasift or you can comply with FISA's requirement to show cause, but logically you cannot do both. Yet datasifting is far and away the best weapon we have with which to forestall several categories of attacks. It allows a close targeting and scrutiny of possible dangers in a way that no other tool can. It is the reason why we don't need a cop standing on every corner searching you at random. Most of all, it is the reason we don't need to harass poor innnocent citizens who happen to be Muslims or originally from certain countries. It is your best protection, bar none.

So there's the logical conflict. Either you must say "we cannot datasift", and watch NYC go kaboom!!!! or we must datasift and ignore the requirements of FISA. The federal government was datasifting before 9-11, but it had constructed rules that prevented it from pursuing the list of possibles.

I like the way Bush solved this logical puzzle. He scratched his chimpy head, had another banana, and said "The Constitution says we're supposed to protect people. You guys are telling me that we had the A SHORT LIST before 9-11 but we DELIBERATELY DID NOT CHECK IT! That law obviously makes no sense and is not applicable; it is not even discussing such efforts, it does not even consider such techniques, it is utterly useless as a guideline. It's like trying to fight bird flu by passing a law making it illegal for sparrows to fly across state lines unless they stop for health checks first. We will protect people by employing the techniques that would have worked before 9-11, and we'll let Congress know what we are doing and why."

Maybe Bush likes Venn Diagrams. At least he's not a lawyer (sorry, Carl!).

Datasifting could be misused as an instrument of domestic oppression. There is absolutely no evidence that it now is, but anyone concerned about civil liberties should consider what bounds should be set for such programs. That is why you should read the FISA decision referenced above.

I freely admit I approach this as a military person, maybe I approach everything that way but...Once you involve the military in an operation everything, and I mean everything is different. It's called collateral damage, or various other things, but one of the things it means is that we know the use of military force is going to cause the death of innocent people. This entire wiretapping issue is in support of such a military action, and to claim you support an action that will kill innocent people but don't support possibly spying on them is, well, I just don't understand. It's part of why you don't involve the military unless you have to.

The battlefield is not confined to bullets and bombs and soldiers trying to kill each other. Warfare has evolved (what a horrible term for that) and we fight them however we can. If a U.S. citizen is on the field of battle, innocent or not, his death (or the monitoring of his communications) should not be a surprise.

From that perspective, I think FISA is irrelevant, we are either at war or we are not. The President has the authority to conduct war.

Yes, the President does have the authority to conduct military operations. The AUMF says he is supposed to use force. The courts have also held that he has the power to conduct foreign intelligence operations outside the bounds of the Fourth Amendment.

Constitutionally, the question is really whether FISA can constrain such activity. The courts are not going to rule that it can. Instead they'll rule that it doesn't apply somehow.

But remember Tommy, some on the left have constructed the following version of reality:
1) The President either plotted to crash those planes into buildings or deliberately let it happen, because
2) He and his nefarious sidekicks wanted to construct a fascist state, and
3) This was the only way he could do so.

So their QED is that we are not at war with terrorism, and terrorism wouldn't be a threat anyway if it weren't for Bush, and therefore Bush doesn't have the power to do such things. Think Joel Stein bleating about joining the military knowing that you will be used for "military imperialism".

I wanna bust that little creep up. In my entire life, it's the first time I have ever experienced the desire to beat someone up. It's overwhelming.
You hit on something very key - what are the bounds. This must be set BEFORE a program is set up not after they get caught, and that takes laws.

Additionally, datasifting itself could be viewed as unreasonable. I talk to people overseas all of the time. I dated a Greek girl for over 2 years. Both of us being political, we had many conversations about islam, jihad, israel, suicide bombers, terrorism, etc. Am I on their "suspect" list? I don't talk about that stuff anymore when I call overseas.

Additionally, the FBI itself has said that the datasifting program has been much more a burden that a help because they go chasing down leads that go nowhere, taking them away from the tasks that actually do something to stop terrorism.
Dingo - yes, bounds are necessary. However, these programs are not new. Previously this was being done, but the information could not be used. 9-11 did change that.

The rational thing to do is to have the debate.
yes, it was being done without warrants and found to be unconsitutional if done domestically, and supposedly without warrants legally, only on foreign to foreign contact.

The reason that we have FISA is because presidents were unable to not abuse power (Johnson and Nixon).
Here is a good explanation of the issue at hand in the In Re Sealed case.


everything else is dicta and not legal authority.
Interesting post.

Seems to one of the folks outside of the beltway, that the rules of the game are that if you need to do something not allowed by the law, you change the law first. Now it may be Bush and company need to do this. Fine, convince congress and the senate to go along. Perhaps they will come up with some protections and restraints that would prevent this tool from being used as a means of internal control. If the president could not convince them, then he cannot do it. it is called the law, even if one does not like it.
Now if what you wrote is correct, it seems to me we have a case of the president willfully violating the law. Hmmmm....... Not good. For if the president can ignore law there, why not elsewhere. Perhaps in time we will have to set up camps to contain disruptive elements within our nation, this would be a usefull tool to determine who those "domestic terrorists" might be. Perhaps will need to find a final solution to the "Islam problem".
No, I just don't trust anyone to have this sort of power, even if the first user of said power sues it for good.

Bush goes down further in my opinion, and I voted for him twice.
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