Monday, March 20, 2006

Grievously Behind the Times - I Mean, the Post

Me, yes, grievously behind, in that I'm just now getting around to reading Judge Posner's essay on why it's okay for the NSA to be spying on its citizens. Turns out it's simple: spying by computer isn't really spying! And then, of course, we gotta catch those terrorists, so that makes it really okay.

Much as it pains me to characterize the opinions of so distinguished a figure in such terms, I can only call Judge Posner's reasoning idiotic. Invasion of privacy? Nonsense, he says.
... 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.
I'm going to go out on a limb here and guess that Posner doesn't have a gmail account, and hasn't been subjected to any of Google's eerie and annoying on-topic ad placements. Anyway, observe how adroitly Posner changes the subject: he mentions "collection and processing" of data, but then proceeds to argue his case only about the "processing" part.

It's not the processing that's an invasion of privacy, duh. The invasion has already happened with the collection of the data in the first place. If collecting personal data isn't per se an invasion of privacy - most especially when it contravenes the law - then I would very much like to know what, in Judge Posner's world, meets the standard.

Incidentally, I'm sure once that private data is determined to have no value, it is of course deleted to prevent any possible future misuse, right? Sure it is. But not to worry:
No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects -- a matter that was quickly exposed despite efforts at concealment.
In other words, "they wouldn't dare." This is an absurd argument even on its own terms - in fact these two sentences contain their own contradiction. Data will not be misused nor privacy really invaded, because scandal would inevitably result. Look how well that worked in preventing the United States Army from torturing prisoners in Iraq! Um... oops.

A few more howlers:
The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies.
This, from a man versed in both the law and economics, is almost breathtakingly naive. I can think of several other, not unreasonable fears, off the top of my head. And I'm not even very clever at that sort of thing.
Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information.
Such as...? Wait - let me just guess that the government won't tell, because that's sensitive information. Might cause a scandal, you know.

Okay, and last of all - and this is in no way Judge Posner's fault -

The Pentagon has a department called the Information Dominance Center? And the "data-mining" program they've developed is called "Able Danger"? Somebody needs to stop reading Tom Clancy novels. Somebody - most likely a frighteningly large number of somebodies - has developed a serious, possibly terminal, case of romance with espionage.

11 Comments:

At 2:33 PM, Blogger Murky Thoughts said...

I think you cribbed this post from an encyclopedia entry for "knee-jerk." Posner's saying something philosophically sound, as far as I'm concerned. He's framed it as the tree falling in the forest problem. It doesn't make a sound if the listener is a robot and it never plays its recording for anybody. The privacy you're talking about seems to be a right to black hole-like isolation, of which I think neither Hawking nor Donne would approve. And your momma wears combat boots.

 
At 4:32 PM, Blogger rain_rain said...

I'm sorry, what? If a tree falls, it makes a sound, right? Sorry, I was raised by physicists, I don't really consider that a philosophical question, but a failure to be reasonable.

And actually, the privacy I'm talking about is the right to have the government keep its nose out of my business, especially when the law specifically prohibits such use of its nose.

Posner takes the trouble (really, he does) to remind us that "a computer is not a sentient being" - and once again undermines his own argument. Just leave the computer - or the hypothetical robot in the forest - out of it, then. Who put the robot in the forest? And I'm supposed to trust them not to play back the tape, when they already broke the law just by putting the robot in the forest?

Does... not... compute...

 
At 4:42 PM, Blogger rain_rain said...

The Encyclopædia Britannica Online article on "knee-jerk reflex" notes that "... absence of the reaction suggests that there may be damage to the central nervous system."

 
At 5:40 PM, Blogger Murky Thoughts said...

I see the problem. I was raised by philosophers and only majored in physics. Physicists talk about "sound waves" but when attending to physicists you don't watch their lips you watch the chalk and equations on the blackboard. Anyway, they don't own the word "sound" and I'd be surprised if you didn't agree that sound is foremostly a sensation or perception. To acknowledge that foremost meaning is not to deny the existence of objective physical correlates to the sensation, such as longitudinal compression waves in the air, the vibration of the tympanic membrane and the firing of neurons. It's to be speaking english. Nobody in the forest, no sensation, no sound. QED. Posner goes this way and I am tempted to follow because "privacy" likewise to me unavoidably implies perception--an assumed impermissible perception. But what's assumed impermissible isn't based on principle so much as on practicalities. You don't have a right not to be watched walking down the public road. You don't even have a right not to be photographed by someone who wants to hang your portrait over his or her mantle. Practicalities depend on technologies and lifestyle and cost and benefit, and these have changed a whole lot since we got the 4th Ammendment. You don't own the sound you emit or photons you reflect or the heat you give off. You may continue to enjoy protections on who can do what with their measurements and recordings of these things, but what's protected you in the technological era up to now mostly is the practical difficulties of recording in the first place, not a ban on collection.

 
At 7:37 PM, Blogger rain_rain said...

... although there is, in fact, a ban on collection. Lots of bans, in fact. Legal bans, which I happen to think the government - specifically the executive branch of the federal government - should obey. I realize it's more than a bit quaint, in light of recent history, to expect the rule of law to mean anything to this administration and its supporters, but... well, color me naive. What, am I now supposed to rely on copyright law to protect me from surveillance? And surveillance is exactly what the government was doing.

To claim, as Posner did, that it somehow doesn't matter, or isn't really spying, just because the data is being "mined" instead of inspected by human agents... that's hairsplitting of a particularly inane, if not outright disingenuous, kind. I expect a better quality of reasoning from a judge.

Like I said, naive.

 
At 8:08 PM, Blogger Murky Thoughts said...

I think the bans you must be talking about are laws and/or regulations against wire-tapping and the like. It's bad to violate laws and regulations even when you're a president, but if we're talking about a constitutional protection against surveillance, then leaving aside the impeachment process, I think we're talking about the "due process" provision of the 4th Amendment...and certain unmentionable penumbral emanations of our constitutional private parts. Probe all you want, you won't find "no surveillance" in there.

 
At 8:22 PM, Blogger Murky Thoughts said...

i.e. neither "no machine surveillance" nor "no human surveillance"

 
At 8:29 PM, Blogger Murky Thoughts said...

I suspect the argument against data collection has to be made on the basis that the government can't be trusted. The problem is we have no choice but to trust our government on matters of security, and in principle a day might come when we'd be taking an unacceptable risk of destruction were we not to sacrifice more privacy. Better our privacy than our lives. Patrick Henry can go stuff it, as far as I'm concerned. It's a Catch-22. That's one reasons why we need a vigorous free press.

 
At 1:23 PM, Blogger rain_rain said...

Actually, the argument against the specific data collection in question can be made on at least two grounds: the first is that the government can't be trusted. But the second is that - as I understand it -it's illegal. The government doesn't get to break the law, because the law is all the government is. So regardless of whether spying on presumably innocent citizens is a good idea or not, it's not okay. If it's such a great idea, they should change the law.

Obviously "the government" can't be trusted. That's been demonstrated enough times, surely, over the past 4000 years, that debate ought to be closed? It's why the founders of this country decided on a democratic form of government; it's further why we have three branches of government; in particular it's why we have - well, why we're supposed to have - an independent judiciary. Checks, balances. Distrust of government is one of the fundamental principles on which this country was founded, and rightly so. That's not to say there aren't instances where we do decide to entrust certain powers to the government; but there are kinds and kinds of trust, and to put unlimited faith in the benevolence of government would be... how shall I say... foolish. Again, three branches; checks, balances. Trust everyone, as they say, but cut the cards.

But in particular - I'm sorry, I can't resist - we're to trust the Bush administration? Regardless of what you believe to be the reason for their wanton and willful disregard for the rule of law - and whether you believe they lie repeatedly and often, or whether you think they're just spectacularly incompetent when it comes to discerning truth... well, who can advocate trusting this particular incarnation of "the government" any longer, and keep a straight face? Besides Condoleezza Rice, that is. Botox® or Delusion® would be my explanation for that remarkable ability.

Incidentally, there are plenty of "rights" that have been descried in the Constitution, without having ever been specifically mentioned. The famous right to privacy, for one. The Supreme Court left it vague and ill-defined, and it's a perennial bone of contention, but... well, there it is.

Ooh... I can't wait for Constitutional Law...

 
At 3:52 PM, Blogger Murky Thoughts said...

We have the checks and balances to reduce the risk we face in trusting the government as a whole. Also notice the "checks and balances" metaphor is dynamic rather than something static like "balast." So we have to trust the government as a whole, even though inevitably one branch (typically the executive) is going to lead and other branches will lag in the checking and balancing. In principle, the responsibilities that the Constitution places on the executive may require it to take an illegal action before Congress has time to convene, vote and legalize it. They can only "check" the president after the fact by impeachment, after he or she reports to Congress what he or she has done. For that reason, just failing to report or lying about important matters to Congress calls for impeachment, as far as I'm concerned. For rapidly changing top secret national security stuff, there's some bipartisan intelligence committee the president ought to keep appraised in real time, or as close to it as possible. get the sense this White House does it best to talk to nobody in the Congress but the Republican leadership, which presumably feels obliged to put up with more caginess and deception and foot-dragging than would a larger and/or bipartisan bunch. The lawyerly t.s. and I had a related back-and-forth awhile back. Fortunately, with this White House, talk of Article II and impeachment is always timely.

 
At 4:00 PM, Blogger Murky Thoughts said...

Oh, and I think I mean "14th Amendment" for where I wrote "4th" above. Conceivably I mean the 5th. Definitely I only barely know what I'm talking about, if that.

 

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