Crying Foul Too Late

The bevy of libertarians at Positive Liberty (and I suspect many others e.g., Obsidian Wings) have pointed and decried the recent revelation that the NSA has obtained point to point phone records for a period of time. However, these complaints it seems to me, from the libertarian point of view argue the wrong side, miss the point, and too late anyhow. I’ll tackle these points in reverse order. My (largely irrelevant) opinoin on this affair is at the tail end of this piece.

Why tool late? Look at Iraq. The insurgency in Iraq was well armed, well financed, well trained, and prepared ahead of time for the loss of the conventional battle. In addition they have sympathetic and very supportive neighboring states, some of which are activly supplying them with arms, men(?), and materiel. But they lost, judging from the most reasoned analysis I’ve seen, at The Belmont Club who points out that the “war” is over and the political battle is all that remains to the enemy. All that remains for them is a last ditch effort to “win” the political battle (the peace) because they’ve lost the war. The point is that modern military technology, smart bombs, advanced networked CCC, and other toys as well as the high level of morale, training, and capabilities in the person of the American soldier mean that the opposition wss doomed. That also might mean that, unlike previous guerilla operations, counter-insurgency from a military perspective is a “solved” problem. And that possibility has a direct impact on the current issue. For imagine in the future a subset of our society decides that our leaders have “gone too far”. What chance does an insurgency have? Well, little to none. That insurgency will likely not be well equipped, have foreign backing, or any sort of training. In fact, being “soft” and somewhat averse to hardship, distracted by wealth, and “mostly” overwieght, and, well, very averse to death (or hardship) any current American insurgency I fear will not look like the Civil War version II, but might more resemble the Silenc(e)ing of the Lambs.

This means that those people who warn against the loss of liberty are too late. Liberty has already been lost, but we don’t yet know it. The option to “water the roots of tree of Liberty with the blood of Patriots” is not a possibility (or it would just be futile martyrdom). Perhaps the only thing remaing is to distract the beast, to live a life beneath or somewhere it won’t look. To cheer it on when it lurches in the right direction. The plug cannot be pulled on the current regime no matter how bad it gets. Military technology has progressed to the point, where the outraged civilian cannot, by force, redress wrongs. Only through “channels” is that possible.

At the same time, the powers of destruction available to terrorists and other malicious elements in our midst has also grown. We are highly dependent on an array of delicate technologies for our survival and at the same time, the technology of desctruction has increased. While an insurgent force cannot win. It can strike and can hurt. There are those in this world who would use those powers if they could.

On the particular issue that has arisen there are, unacknowledged by the two links above the fact that there is a real security issue. Terrorists exist and have financing. Our borders are porous, and we like it that way. That means in order to have security our intelligence community must operate within and outside of our borders. The most unobtrusive (and perhaps most effective) method of doing that is via data search operations on things like phone records, financial records, and doing complicated data mining to correlate with human intelligence to find suspects to observe. Imagine that it might be found that such data searches are among the most effective methods we have for tracking down those who might do us harm. That this might be effetive it seems to me plausible. In fact, it’s plausibility is most likely why there are those who object. So the two contrasting competing issues are liberty and security. The problem at hand is oversight. It seems clear that methods of oversight might be developed. But it also seems likely neither the objectors nor the implementers are working hard to find a solution which will keep everyone happy, that is have security with enough oversight and checks in place so that safeguards exist to prevent abuse of these powers.

Possesion and searching of the data by computer should, it seems to me, not require warrant as that process does not involve any moral agent. Similarly, it might seem that humans might review the results of the search if those results were not yet tagged with the identity of the people involved with the call. For example, in the case of the previous NSA kerfuffle after a computer program had identified a number of questional keywords in a international phone conversation flagged a call for observation, a person could review the transcript (or voice data) to see if that call really was important or merely a false positive. If that human agent reviewing the call had no data on the two endpoints of the call, then it might be argued that still a warrant might not be needed for sufficient anomymity protects the people involved (which two of the 6 billions of us were actually making the call). If then it past this screening and still needed investigation at that point a normal judicial warrant process might be useful and at that point the numbers “match”, that is warrants would not need to be obtained for hundreds of thousands of calls per day, but only those which have been flagged. The number of warrants is then only proportional to the number of available agents, not something tied to ever increasing data processing rates. Likewise with this issue, the data mining queries searching for suspicous activity while in progress do not involve moral agents. If an initial screening process to check valiidty of the data is deemed appropriate (and at some level that will always be the case), then target anonymity might be maintained until the “network” is deemed worthy of active interest. At that point, a warrant might be obtained, and at that point the “names” and identities tied to the data involved.

If one tries to argue that these calls are “private” and out of the realm of the public interest or purview. How so? My phone call leaves my castle, the data travels out copper, is digitized, packetized and transmitted through an array computers and data networks until it arrives at the demesne of the person to whom I converse. How private should I expect that to be? This data is already “inspected” (for routing) by any number of automatic computer processes. Every point to point call is logged with duration for billiing purposes. It is not “private” by any sense of the word, just that the government has had no interest in it. In fact, if it was well known that privacy was not expected, for example if anybody might legally and on request tap any call, then privacy would be the responsibility of the users. This level of privacy would not even be prohibitively expensive, as encryption (from a omputational standpoint) heavlily favors the user not the breaker. In a world like that, encryption would become a commodity. It is oddly enough in the government’s best interest to discourage private encryption because it makes tapping more than a legal matter, but a hard technological one as well. The “correct” libertarian response to government tapping if freedom and privacy is their true goal, oddly enough, would be to encourage tapping so that trust is lost and encryption methods, devices, and algorithms form a expanding new market. In that case, privacy would a thing much harder to “take” for it is not a legal matter, but a technological device.

I contend is that until a name and a moral agent are put together there is no loss of liberty. If data is recorded in a forest, and nobody (no moral agent) listens, who cares? That this “weapon”, that is computer searches, can be powerful, well what’s the point of noting that? Aircraft carrriers, stealth bombers, smart bombs, and nuclear warheads are all powerful weapons. They are tools. We trust the men and women weilding those tools to do there jobs and trust their honor not to abuse that trust. How is this tool so different? Our nuclear stockpile has safeguards. This data mining capabillity has dangers, but safeguards can be developed. Argueing for safeguards (judicial warrants) for every data point touched by a computer is just silly. Warrants for human agents leading to possible actions is not. Chicken Little-like responses that the existence of data mining of public (and semi-public) data represents an abuse of power is not helpful, because there are indeed good reasons for doing those searches. We like our porous borders. We like free international commerce. We like travel. There are nutcases and extremists out there who want to destroy what we have. These methods are almost certainly highly effective tools in the search to find those individuals before they do harm. So instead of “warning” that these methods are “illegal” or unConstitutional, which is not so clear, might it not be better to suggest ways put safeguards in place? To insure that the majority of our officers and agents guarding our freedom can work effectively and be safe from the occasional individual their midst from misusing his “weapon”.