Unholy Alliance
Let’s look at the Fourth Amendment, to refresh our memories:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In light of the above, I wonder what the Founding Fathers would have thought about this situation:
Intelligence centers run by states across the country have access to personal information about millions of Americans, including unlisted cell phone numbers, insurance claims, driver’s license photographs and credit reports, according to a document obtained by The Washington Post.
One center also has access to top-secret data systems at the CIA, the document shows, though it’s not clear what information those systems contain.
Dozens of the organizations known as fusion centers were created after the Sept. 11, 2001, terrorist attacks to identify potential threats and improve the way information is shared. The centers use law enforcement analysts and sophisticated computer systems to compile, or fuse, disparate tips and clues and pass along the refined information to other agencies. They are expected to play important roles in national information-sharing networks that link local, state and federal authorities and enable them to automatically sift their storehouses of records for patterns and clues.
Though officials have publicly discussed the fusion centers’ importance to national security, they have generally declined to elaborate on the centers’ activities. But a document that lists resources used by the fusion centers shows how a dozen of the organizations in the northeastern United States rely far more on access to commercial and government databases than had previously been disclosed.
Let me start by making some general principles understood.
- “Papers", as defined in the Fourth Amendment, are not just actual paper records kept in one’s house; they are the documents, whether paper or electronic, which are the records of our transactions with business and government, and our correspondence with other people.
- “Unreasonable searches” has come to exclude the casual scanning of databases for “items of interest”, and for which no warrant (under existing law) is necessary.
Ask yourself these questions:
- Would the citizens of post-Revolutionary America have allowed banks and other financial institutions to share on a continuous basis the contents of a person’s file of affairs with each other, without the express permission of the person involved?
- Would Congress have had the gall to pass a law in, say, 1800 which required that banks and other financial institutions share the contents of a person’s file of affairs with government agents, or allow government agents to peruse those files at will, and without a warrant?
The answers to both the above, of course, are “no” and “of course not”—and yet that is
precisely the situation in which we live today.
For most of my working life, I have been a data professional: compiling, designing and analyzing reports; designing data systems which enable close scrutiny of data; and creating data collection methods, physical and electronic, which enable all the above. As such, I understand the depth and complexity of this activity as well as anyone alive—and I understand the dangers and pitfalls contained therein better than most.
For the most part, too, I have been dismissive of many of the fears communicated to me about the collection of individuals’ data—in no small part because I worked in the supermarket business, where an individual’s purchases are generally of absolutely no concern to anyone save a few marketing professionals—but even so, I have always been super-protective of the privacy of individuals’ data. Even when threatened with subpoenas to “prove” that a mother spent $x on groceries (in divorce proceedings, to establish a “reasonable” amount of support or alimony), I’ve refused to comply except with the express permission of the consumer concerned. Even if that person gave the permission, I would also make sure that I protected any data which might prove embarrassing or harmful, such as the purchase of condoms by a wife, even though the husband may have had a vasectomy.
See how ugly this kind of thing can get?
Now apply this kind of sensitivity to, for example, credit information or credit card purchases, and you’ll see where this is headed.
Here’s the problem. Before the digitization of information, scanning of data files was arduous, time-consuming and prone to error. Indeed, the very enormity of the task was its own safeguard against casual or random searches. Now, of course, we have digital data, electronic storage and search engines which can comb huge databases for anything, with extreme accuracy and at lightning speed.
Worse yet, it’s impossible to prevent anyone with access to query these databases and it’s not feasible to require a separate search warrant for each query, for example, so “blanket” permission is generally granted, if such permission is even required by law.
In one of my earlier posts entitled No Data, No Oppression, I noted approvingly the attitude of John Cowperthwaite, then-governor of Hong Kong:
Cowperthwaite explained that he resisted requests to provide any [data facts], lest they be used as ammunition by those who wanted more government intervention.
...and my subsequent comment was: “In other words, the more data you give the government, the greater the likelihood that the data will, at some point, be used by the government, and not necessarily to your advantage.”
The modern problem is that we’re not giving the government any data. Commercial institutions are collecting information about our private lives, and through these monstrous “fusion centers”, they’re sharing it with government as a de facto function—no warrants, no permissions, no restrictions of any kind.
Worse still, we all know that during wartime and in extremis, the government can operate in an extra-Constitutional manner—and reasonable people do not argue the point, because as the man said, the Constitution is not a suicide pact. But implicit in that permission is that the measures are temporary, and must be repealed when the crisis has passed.
I see no signs that this sharing and mining of data is anything but a permanent situation. This is particularly true when we realize that the “wars” under which these powers are being amassed are, by admission of government, open-ended: the War on Drugs will never end, and the War on Terror unlikely to do so.
As someone who has pioneered the use of search algorithms, and who still owns a couple of trademarks and patented procedures in the field, I have to tell you, I feel somewhat like a biochemist who discovered a miracle pesticide which would end crop blight, and then discovered that the pesticide was being used by the State to gas and exterminate people.
I am by nature an optimistic person, and I try always to look for the best outcomes—but I have to tell you, I do not feel that way in this situation. Worse still, I don’t have an answer to the problem, either. The information genie is out of the bottle, our papers and effects are open to anyone who shows an interest, and warrants are no longer required for the State to poke into the deepest and most intimate details of our lives.
I don’t know how we can get this back. In the name of “anti-terrorist activity”, we have lost our privacy, not just to government (which is bad enough) but to anybody.
There is no line in the sand that we can draw and say, ”Thus far and no further” because the State, with the oh-so willing compliance of private industry, has created for itself a giant blower which can just blow away not only the line, but the sand itself.
I have no answers, only hopelessness and despair.
