A Stitch in Haste

Richard Posner has a piece in today's Washington Post that is likely to befuddle many of his acolytes:

The ... National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States.

These programs are criticized as grave threats to civil liberties. They are not.

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy.

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.

I find this assertion astounding.

If I understand Posner correctly, he is invoking a data mining analogy to the infamous "guns don't kill people, people kill people" snark. "Computers don’t invade privacy, government invades privacy"?!?

But of course they're government computers, programmed by government employees to reveal information to the government. All without a warrant and all summarily defended as part of "national security."

Sorry, that's not good enough.

We're fighting a War on Terror, supposedly to protect American lives and the American way of life. But we're also fighting a War on Drugs, again (supposedly) to protect American lives and the American way of life. So why not, using Posner's paradigm, employ data mining to gather, for example, utility records of every American household? (Unusually high consumption of electricity, although perfectly legal, is an indicium of the presence of heat lamps used to grow marijuana indoors.) Would Posner believe that such "data mining" (i.e., of utility bills) constitutes no affront to civil liberties, so long as it's done by computer?

Or better yet, why not just use our spy satellites on American soil to "data mine" infra-red heat signatures to root out the high-powered lamps? Again, as long as it's done by satellite and not by human beings, apparently Posner would have no problem with it.

Here's why not: Kyllo v. U.S., 533 U.S. 27 (2001), which struck down warrantless thermal imaging of homes. Regarding the use of technology in prying into the lives of American citizens, the court said:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Data mining computers are certainly "a device that is not in general use" that "explore details that would previously have been unknowable."

I'm not suggesting that Kyllo is controlling when it comes to warrantless wiretapping of international communications in the name of national security. But I am saying that Kyllo is one example that, contrary to Posner, "mere" technology is still subject to basic Fourth Amendment scrutiny (and, by corollary the limitation of Article II powers).

He should know better.

More thoughts from Concurring Opinions, Balkanization.