In
Richard Posner's op-ed piece this morning, the good judge's credulity about data mining is astonishing. For example:
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.
Unfortunately for his thesis, there is absolutely no evidence for such an assertion, and that vacuum of facts is specifically due to the fact the President circumvented Congress.
Because there is neither debate nor oversight, we as citizens have no assurances, legal or otherwise, that the system is designed so that a person is only flagged via machine and not via human intervention. Nor do we have any recourse for being "unflagged" should the algorithms for identifying people prove anything other than infallible. Given the Bush administration's stated policy of rendering anyone remotely suspected of being a terrorist, locking them up at Gitmo, and denying them access to the court system, what possible basis is there for believing that such a system should be implemented in secret? That's exactly why such a system should be debated by the people's legislature.
Posner carries on in this vein:
The data that make the cut are those that contain clues to possible threats to national security. 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 is outright speculation, unless Posner knows something the rest of us don't know - and if he does, that may consitute a criminal national security breach in its own right. The public and the Congress know absolutely nothing about the algorithms used, their efficacy, nor what data or actions can reduce or increase the likelihood of being flagged, much less how use of the system is authorized and managed. If medical data merits a law like HIPAA explaining in detail what institutions must do to properly use and protect medical data, why does "suspicion of terrorism data" not meet the same standards of importance?
Posner is engaging speculation about a subject he has no background in. He's simply asserting that the NSA has built infallible software and will use it infallibly. Has he not been paying any attention whatsoever to the Diebold debacle? As a federal judge Posner has a repuation for being smart, libertarian, and independent, but this op-ed seems to run counter all that. How can a smart libertarian be naive enough to believe without any evidence whatsover that the NSA would never invade anyone's privacy? During the Microsoft trial his dalliances with the press, open admission that he was influenced by a book on Microsoft, and leaking of his opinion left a bad taste in people's mouth about whether he waits for evidence to make a decision (even among those who thought Microsoft got off the hook unfairly). This op-ed seems like more of that shoot-first, ask-questions-later streak.
I would definitely suggest attending the Post's "online chat" with him today.
