NSA Spying and Bright Lines

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.

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