NSA Spying and Bright Lines

by on August 30, 2006 · 14 comments

I’ve got a new article in the Hearland Institute’s IT&T News about the NSA’s spying programs:

An even bigger issue with mass surveillance by software is the way it would transform the principle of judicial oversight. Under current law, law enforcement officials must request a warrant from a judge for each suspect they wish to monitor. The judge examines the evidence for each suspect individually, and grants a warrant only if he or she finds probable cause that the suspect is guilty.

Automated surveillance, however, would involve a computer program monitoring tens of millions of individuals with no judicial oversight at all. Even more troubling, after the software had produced its list of suspects, the judge would be asked to approve human surveillance of the list the software produced, even though many of those on the list are probably innocent.

Constitutional rights depend on bright lines, so judges are not forced to make arbitrary judgment calls about when someone’s rights have been violated. But such bright lines would be extremely difficult to draw once the traditional “probable cause” standard has been abandoned.

This is a recurring pattern I’m noticing a lot in my public policy research. You can also see it the abuse of the “blight” loophole for eminent domain abuse. Because there’s no clear definition of the term, over time the exception has swallowed the rule. As a result, we get monstrosities like these. Secure rights require bright lines. And bright lines are impossible when surveillance decisions are made by computer programs with thousands of lines of code.

  • Ned Ulbricht

    1 s/Hearland/Heartland/

  • Ned Ulbricht

    1 s/Hearland/Heartland/

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Yes and I can already divine the way the creep will happen. There will be a case of child pornography that is uncovered, and then the cry will be “But we want to protect your children!” Next will come some crime slightly less odious than kiddie porn, and so on and so on, until the question is: what do you have to hide that you won’t allow 24 hour video surveillance of your entire house? You must be hiding something.

    The term I have always liked for this is a slippery slope, and I am afraid we could be in for quite a ride, unless somebody hits the brakes, like real quick.

  • http://enigmafoundry.wordpress.com eee_eff

    Yes and I can already divine the way the creep will happen. There will be a case of child pornography that is uncovered, and then the cry will be “But we want to protect your children!” Next will come some crime slightly less odious than kiddie porn, and so on and so on, until the question is: what do you have to hide that you won’t allow 24 hour video surveillance of your entire house? You must be hiding something.

    The term I have always liked for this is a slippery slope, and I am afraid we could be in for quite a ride, unless somebody hits the brakes, like real quick.

  • http://www.codemonkeyramblings.com MikeT

    The only people I have seen in the blogosphere that support this stuff are the useless political talking heads who know next to nothing except politics. Anyone with half a brain and any experience with computers would know how inaccurate these things are bound to be.

    The simplest solution, is unfortunately the one that Bush would never do because it would require some cajones and no new federal powers: deport all foreign nationals from the nations that have large representation in terrorist groups that are acting against us. That wouldn’t amount to a “deport all Muslims” order, but it would mean that we’d have to say to the Saudis that they are personae non gratae because of their extreme anti-Americanism and popular support for Wahabi Islam (which by default translates into some sort of support for terrorism).

  • http://www.cato.org/people/harper.html Jim Harper

    In light of the Oklahoma City bombing, let’s deport all Americans too. Total security – cheap ‘n’ easy! )

  • http://www.codemonkeyramblings.com MikeT

    The only people I have seen in the blogosphere that support this stuff are the useless political talking heads who know next to nothing except politics. Anyone with half a brain and any experience with computers would know how inaccurate these things are bound to be.

    The simplest solution, is unfortunately the one that Bush would never do because it would require some cajones and no new federal powers: deport all foreign nationals from the nations that have large representation in terrorist groups that are acting against us. That wouldn’t amount to a “deport all Muslims” order, but it would mean that we’d have to say to the Saudis that they are personae non gratae because of their extreme anti-Americanism and popular support for Wahabi Islam (which by default translates into some sort of support for terrorism).

  • http://www.cato.org/people/harper.html Jim Harper

    In light of the Oklahoma City bombing, let’s deport all Americans too. Total security – cheap ‘n’ easy! )

  • http://www.codemonkeyramblings.com MikeT

    Great rebuttal. I can see why libertarian purists are taken seriously on national security issues by the public.

    Pray tell, where is it written in the US Constitution that there is a constitutional right for foreigners to come to and live in the United States? How is the cause of liberty served by libertarians sitting around with their thumbs up their behinds, not proposing the minimum protection while our enemies propose the maximum?

    See, I’ve noticed that you open borders types have a real problem with freedom of association when collectively exercised. Why can’t a free society say to a barbaric, backward country like Saudi Arabia that we do not wish to associate with their culture, when it holds values like this: http://www.digg.com/world_news/Saudi_Schoolbooks_Christians_and_Jews_are_apes_and_pigs

    There is no example in our history of such a violent, hateful culture integrating into a liberal society. This is not about deporting all Muslims, but identifying a handful of very severely screwed up Islamic countries who seem to have a major problem with living at peace with those different from them. Views like yours will spell the death knell of libertarianism in this country if there is a major attack and libertarians continue to cling to outmoded notions like culture and ideas don’t have a direct bearing on how well foreigners can adapt to a new society, or whether they can even be trusted in a new society at all.

  • http://www.pff.org Patrick

    Mike, I agree Jim’s being a bit simplistic, but I think he was just making a point while having fun. Let me argue in favor of open borders, though. I believe in completely free trade (a la Bastiat) and feel labor should be included in that; after all, a free market works best when labor can migrate to areas of job growth. I would waive any immigration restrictions and would assume we wouldn’t be “overwhelmed,” because if there were no more jobs immigrants would stop coming. I would also resist having our society blacklist individuals because of the culture they come from.

    That said, it would be incumbent on all immigrants, on track for citizenship or not, to obey US law. A non-citizen could be subject to expulsion under this model (although since they could likely just return without our noticing, prison would seem more suitable).

    I agree my position is extreme and politically untenable. I also acknowledge that it poses severe security risks in an age of terrorism. But the economic cost of not having open borders is overwhelmingly high. I don’t view my position as libertarian so much as free-market.

  • http://www.codemonkeyramblings.com MikeT

    And see, that’s where Jim and I differ. I am less concerned about economic growth than I am about preserving what remains of the American culture of liberty, preserving property rights and keeping violent foreigners who will have a poisonous effect on the aforementioned things out. I welcome anyone who wants to contribute to our liberal traditions, but am unabashedly in favor of sacrificing some wealth gains in the name of saying “if you’re not liberal, you’re not welcome here.”

    I would be a lot more sympathetic to your position if there were any other countries that would extend a right of mobility to our people. Unfortunately, it’s a one way street and until other countries reciprocate, we need to protect our workers from having the market flooded.

    Lastly, I know Jim was probably poking fun at that point, but it’s a common area between liberals and many libertarians that is too commonly sincerely held. I think that both of you underestimate the amount of damage that our economy, totally unaccustomed to the danger of terrorism, unlike Israel’s, would face in the wave of a free-for-all.

  • http://www.codemonkeyramblings.com MikeT

    Great rebuttal. I can see why libertarian purists are taken seriously on national security issues by the public.

    Pray tell, where is it written in the US Constitution that there is a constitutional right for foreigners to come to and live in the United States? How is the cause of liberty served by libertarians sitting around with their thumbs up their behinds, not proposing the minimum protection while our enemies propose the maximum?

    See, I’ve noticed that you open borders types have a real problem with freedom of association when collectively exercised. Why can’t a free society say to a barbaric, backward country like Saudi Arabia that we do not wish to associate with their culture, when it holds values like this: http://www.digg.com/world_news/Saudi_Schoolbook…>

    There is no example in our history of such a violent, hateful culture integrating into a liberal society. This is not about deporting all Muslims, but identifying a handful of very severely screwed up Islamic countries who seem to have a major problem with living at peace with those different from them. Views like yours will spell the death knell of libertarianism in this country if there is a major attack and libertarians continue to cling to outmoded notions like culture and ideas don’t have a direct bearing on how well foreigners can adapt to a new society, or whether they can even be trusted in a new society at all.

  • http://www.pff.org Patrick

    Mike, I agree Jim’s being a bit simplistic, but I think he was just making a point while having fun. Let me argue in favor of open borders, though. I believe in completely free trade (a la Bastiat) and feel labor should be included in that; after all, a free market works best when labor can migrate to areas of job growth. I would waive any immigration restrictions and would assume we wouldn’t be “overwhelmed,” because if there were no more jobs immigrants would stop coming. I would also resist having our society blacklist individuals because of the culture they come from.

    That said, it would be incumbent on all immigrants, on track for citizenship or not, to obey US law. A non-citizen could be subject to expulsion under this model (although since they could likely just return without our noticing, prison would seem more suitable).

    I agree my position is extreme and politically untenable. I also acknowledge that it poses severe security risks in an age of terrorism. But the economic cost of not having open borders is overwhelmingly high. I don’t view my position as libertarian so much as free-market.

  • http://www.codemonkeyramblings.com MikeT

    And see, that’s where Jim and I differ. I am less concerned about economic growth than I am about preserving what remains of the American culture of liberty, preserving property rights and keeping violent foreigners who will have a poisonous effect on the aforementioned things out. I welcome anyone who wants to contribute to our liberal traditions, but am unabashedly in favor of sacrificing some wealth gains in the name of saying “if you’re not liberal, you’re not welcome here.”

    I would be a lot more sympathetic to your position if there were any other countries that would extend a right of mobility to our people. Unfortunately, it’s a one way street and until other countries reciprocate, we need to protect our workers from having the market flooded.

    Lastly, I know Jim was probably poking fun at that point, but it’s a common area between liberals and many libertarians that is too commonly sincerely held. I think that both of you underestimate the amount of damage that our economy, totally unaccustomed to the danger of terrorism, unlike Israel’s, would face in the wave of a free-for-all.

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