A Stitch in Haste

To review: Judge Richard Posner of the Seventh Circuit Court of Appeals, generally a darling of libertarians, has sparked a wide and deep backlash to his defense of unlimited government data mining (i.e., the ubiquitous gathering of data, without individualized suspicion, through which government computers go on "fishing expeditions") to identify useful information in the War on Terror.

I rebutted Posner here. I presumed in that blogpost that the Big Brother scenario Posner contemplated was strictly a thought experiment that did not really exist.

I was wrong. Twice.

First, as a warm-up, we have the announcement that the U.K. government is developing the ability to track, just for the heck of it, every vehicle movement in that country.

The Automatic Number Plate Recognition (ANPR) cameras will run alongside the CCTV system already in place throughout the country. The aim is to provide round-the-clock coverage of as much of the road network as possible.

Police sources last night claimed that it would not lead to every car on every road being tracked. But it is likely that cameras will be found on most major roads, in cities, at ports and thousands of petrol stations.

The information gathered will be collated by a central database running alongside the Police National Computer in Hendon, north London.

Law-abiding people driving lawfully from lawful places to other lawful places to do lawful things.

But track them anyway. Just for the heck of it.

It seems to me that this is exactly the kind of data gathering that Posner would embrace. The process is strictly automatic, via robot cameras. The information is retained for "only" two years. No law enforcement official's or bureaucrat's eyes will see the information without a valid reason. Or so we're told.

I think it's safe to say that if you feel comfortable with such a program because it might — might — someday help in some way in some aspect of the War on Terror (or the War or Drugs or the War on Crime or the War on Drunk Driving or the War on Smog or the War on Whatever), then you are not a libertarian.

And Posner would, it seems obvious, be comfortable with it. Go figure (or perhaps "go data mine" would be more appropriate).

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And in case you mollified your concerns by focusing on the fact that this was in Britain and not the U.S.:

The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.
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"They have a capacity to listen to every overseas phone call," said Tom Blanton, director of the National Security Archive at George Washington University, which has obtained documents about the NSA using Freedom of Information Act requests.
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"The collection of this data by automated means creates new privacy risks," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, a watchdog group that has studied computer-filtered surveillance technology through Freedom of Information Act lawsuits.
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The closest comparisons, legal specialists said, are cases challenging the use of dogs and infrared detectors to look for drugs without a warrant.

Exactly what I said previously. Kyllo v. U.S., 533 U.S. 27 (2001), which struck down the use of infra-red sensors without a warrant, may not be precisely analogous to omnipresent eavesdropping-based data mining on international communications. But it's close — too close not to consider.

I don't know whether this story was a direct response to the Posner op-ed, but it's exactly what he was hypothesizing and defending — every single international call by every single American being "sifted" (what an obnoxiously inert euphemism). Of course, "sifted" really means intercepted, noted, possibly monitored and perhaps even recorded. Without a warrant, without probable cause, without a "ticking time bomb" that might justify circumventing the warrant requirement. All for no other reason than because it might — might — someday somehow help us somewhere in the War on Terror.

(Via How Appealing. The New York Times has more details.) More thoughts at Moderate Voice.

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In an online chat after his piece ran, Posner said the following:

Why are you more concerned with your privacy than with your safety? Maybe you don't think the nation is at serious risk of further terrorist attacks. I disagree.

Although he later tried to backpedal on that statement, it reveals his underlying rationale for embracing omnipresent data mining. In Posner's worldview: Any marginal increase in national security, no matter how small, is worth any marginal decrease in privacy, no matter how large. In economic terminology, safety should be "lexicographically preferred" to privacy (i.e., the marginal rate of substitution is infinite).

Well, that might be a perfectly rational preference for Posner or anyone else to have, but it is not the only rational preference that a law-abiding citizen could have. And it is wholly inappropriate to assert that, because some segment of the populace thinks as Posner does, they can then impose such a high privacy-for-safety ratio on the rest of us. It is not irrational to prefer some risk in exchange for basic privacy rights. In fact, it is not irrational to demand it.

As I said before: Posner should know better.