December 22, 2005

More on Posner, Spying

I realize now that I appeared to be a little too zealous in my support of Posner's op-ed in my last post. This was certainly unintentional; I should have expressed more clearly and precisely what I was praising about Posner's argument.

I believe, with Posner, that electronic data-mining presents a different situation concerning privacy than does traditional wire-tapping or other activities of the kind. I believe that we cannot evaluate it solely on the basis of our previous approaches to privacy.

Data mining occurs far more than we probably realize and it will only grow. Wal-Mart has immense databases of our shopping habits and so does Amazon or The Gap or whatever. However, this state of affairs is not univocally bad. It can improve customer service, it can improve production. We must decide whether these benefits are worth re-negotiating our current notion of privacy.

I'm just arguing against a knee-jerk "1984 is here" attitude. Books published in the 1940s and the mentality accompanying them should not be the basis of our thinking or our reactions to contemporary phenomena and issues.


  1. Check out Daily Kos' de-bullshitting of the JD's little justification ploy:

  2. Anonymous1:16 AM

    "Books published in the 1940s and the mentality accompanying them should not be the basis of our thinking or our reactions to contemporary phenomena and issues."

    Why not?

    -Tim Waligore

  3. Because doing so is overly simplistic, inaccurate, and plays more upon emotion than reason.

  4. Dammit, I'm not arguing that the President has the legal right to do any of this. Neither was Posner. If you read the Crooked Timber post, you will see that Posner clearly realizes these actions were outside Constitutional bounds as they stand now.
    The point is, we should reconsider what privacy means in a world where technology has made many kinds of privacy obsolete and irretrievable. If we end up with the same definition of privacy and a whole slew of new laws trying to prevent the technological innovations that would change our concept of privacy, that's fine. It's a democratic result. But leaning on a stack of copies of 1984 for justification is a poor defense of civil liberties.

  5. ben bradley1:09 PM

    Posner, as you acknowledge, was not saying that the actions were legal, only that they should be. It's a key distinction that is lost in the shuffle by righties trumpeting the editorial. Thanks for making that clear. It's also important to acknowledge that we are all, Posner included, speaking about the hypothetical here. No-one knows what the searches are, who they have searched, or if there have been violations. This makes it exceedingly difficult to have a debate about it, especially when the Administration wants to turn the debate into security vs. insecurity. That is a disservice to democracy.

    The Crooked Timber post also talks about another important issue. Supposing that Bush's, Posner's, or assumedly your arguments that the new era of technology requires a rethinking of our electronic privacy rights are correct, Bush had almost four years to bring this debate to the Congress and/or the people. FISA, in contrast, was passed explicitly because President(s) had overstepped the democratically tolerable bounds of warrentless searches for "national security." It stands to reason that a revision of the same policy, even by executive fiat, should be ratified with the Congress and/or citizens. It didn't happen until Bush was forced into it. I think that's significant especially if you accept, even tacitly so, Bush's legal analysis of his implied powers allowing this to happen for as long as there is a "war" on terror. It's not hard to see how that could be forever.

    It could be that we need to re-evaluate our privacy rights vis a vis terrorism, but Bush didn't allow us the chance to do it, far past the point where absolute secrecy was essential. I think that, more than the hypothetical debate about what sort of limitation we should accept on our own expectation of pricacy, is the important political distinction right now. I think that is something that Posner doesn't address (possibly because judges don't have to worry about such things).

    Now that the intitial shock of learning about the program has worn off, and references to 1984 become more hyperpolic, I (and many other people more qualified) still see significant, intelligent, and nuanced problems with this sort of policy. But what exactly those problems are is tough to say because we know relatively nothing about the program. So it's hard to address Posner directly, when even Posner has no idea what has transpired.

  6. Michael Huth1:23 PM

    I didn't take the time to read through all of these comments, so I apologize if this was already discussed.

    I think the main point of this whole thing is that the government picking up what amounts to a radio signal from the cell phone of a suspected terrorist in America to a suspected terrorist outside of America is not an invasion of privacy. I mean, if I'm outside somewhere talking to someone on my cell phone, anyone can simply overhear what I'm saying to begin with, and I'm willingly sending those signals unprotected across the country. I think it's also wrong to assume that President Bush just decided one day to kill our civil liberties and start tapping into these conversations. I don't have any links at the moment, but I'm sure that all the presidents from at least Carter to Clinton did similar things. Listening in to suspected terrorists is nothing new. For some people, though, it seems as if though history started in January 2001 when Bush took office, and everything he does is unprecedented. I don't think so. It also shouldn't be that big of a news peice, or a bad thing, that the government is trying to protect us. Saying the government shouldn't protect us from terrorists because they're "violating our civil liberties" is a pretty poor excuse when they're not violating our civil liberties.

    It should also be pointed out that this revelation has no doubt hurt out ability to defeat terrorists here because now they know a specific way in which they're being monitored. It's sort of like how during the liberation of Afghanistan, a defense department official stated that they were tracking Osama bin Laden through his satellite phone. After that remark, bin Laden stopped using his satellite phone and we were unable to capture him (personally, I think bin Laden is a stain on a cave wall right now, but that's a different issue).

    Finally, I'm writing this on a Mac iBook G4, which obviously makes me super cool.

  7. The point is, we should reconsider what privacy means in a world where technology has made many kinds of privacy obsolete and irretrievable. If we end up with the same definition of privacy and a whole slew of new laws trying to prevent the technological innovations that would change our concept of privacy, that's fine.

    Seal -- I'm very interested in your assertion that technology makes certain kinds of privacy obselete, and laws try to protect privacy. In my work, we usually think about it in exactly the opposite way.

    Examples: high-grade cryptography used to be illegal in certain software. There was a hub-bub a ways back where the feds tried to bully universities to make their networks *less* efficient so that they could be effectively monitored (restructuring the network in this way would have cost $billions).

    Meanwhile, technology can grant us more privacy. I should plug my friend Alex Iliev, who is doing very cool work in anonymizers:

    Lastly, I also think that you're dismissing "old books" far too easily. There are many kernels of wisdom there, and I think it's equally simplistic to dismiss 1984 entire.

  8. Ben, I agree with everything you say. I feel both sides are trying to avoid a real discussion about the actual nature of these acts and the technology behind them.

    I think that Bush was spectacularly wrong in bypassing Congress entirely and working outside the law, but that doesn't mean we have the best laws possible concerning electronic privacy at this time. Should Bush be impeached? I'm not qualified to say, but I certainly hope that Dems won't use this whole fiasco as merely a 'gotcha' tactic; privacy is an issue important and broad enough to demand a real national debate, not a mock trial.

    Michael, I'm not sure I'd agree with you that this revelation has seriously impaired our ability to monitor terrorists or suspected terrorists domestically. If it is true that this kind of thing should have been expected, then it is likely terrorists use means of communication that have now been revealed as ways Bush has been spying on us. I think there is a serious question of who has been monitored, and it is important not to overlook the possibility that along with potential terrorists, Bush has been monitoring totally innocent people, such as anti-war activists. This does demand some accounting.

    Nick, I totally realize that with greater technology, we also have advantages in keeping our privacy that we could not have had previously. But surely you must realize that with the internet a whole slate of activities that may have been considered in the private domain are now being broadcast in a way that cannot exactly be called private. Sure, we may be able to elude packet sniffers or whatever more easily, but that doesn't mean that the actual activities we engage in on the internet should be automatically equated with their closest pre-net analog. Similarly, as Michael pointed out, the use of cell-phones in public spaces presents an interesting case where technology has made the "inside one's home" border between public and private obsolete.

  9. In the paragraph to Michael, I meant to say "it is unlikely that terrorists use means of communication that have now been revealed as ways Bush has been spying on us." If this sort of spying has been going on for so long, surely terrorists will have learned not to use modes of communication that would be monitored.

  10. I didn't mean to imply that I disagreed with you, Seal--I do agree that technology does blur the public-private line. That's one way to look at it. We definitely need to have a national debate on these issues.

    But the technology cuts both ways, and Posner's plan simply doesn't work. He assumes that we live in a world where everyone thinks their communications are not being monitored. That is the current state of the world. I like the cell phone analogy: people can overhear what I say on the cell phone; but I don't think they're listening and I don't care that they overhear anyway.

    Suppose the government started data mining all e-mail, as Posner suggests. Then the world will change. Terrorists will just encrypt their e-mail & telephone conversations. Believe me, encryption technology is currently strong enough to thwart even the NSA. So Posner's massive data mining project will only yield data on innocent citizens. The government will have no additional power to stop terrorism, and lots of additional power to monitor citizens.

    There are only two ways to make Posner's strategy work:

    a) outlaw cryptography, and arrest anyone who uses it.

    b) monitor all e-mail and phone conversations, but don't tell anyone you're doing it.

    And I don't think either of these are appropriate in a free society.

  11. Nick, I didn't totally think through the idea of escalation in regards to cryptography—that's a powerful argument against massive amounts of data mining.
    But what I got out of Posner's argument was not that he was saying this should all be done, but that it is, and it's not as gigantic a breach of civil liberties as we like to think, at least not the electronic end. In addition, it will be very difficult to prevent such electronic activity with laws or whatever. I think his idea that the press will keep abuses in check is kind of dumb, but the laws depend on the attention the media would bring to the transgression, unfortunately, so I don't think he's as far off as most people have assumed.
    I don't know enough about the situation to suggest a better alternative. If we as citizens start monitoring the government's monitoring of us, we're back in an escalation. This is why I think a knee-jerk reaction shouldn't happen—it won't allow us to think of real, effective alternatives. And to do that, I believe we need to reconsider what parts of the old notion of privacy are absolutely essential and work on and around those.