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Wednesday, July 9, 2008

Privacy and the 4th Amendment amid the "War on Terror"

CIA Substation, London UK "...I have a hit on Echelon, keyword ‘Brackbriar.’ Repeat ‘Blackbriar.’ It appears to be a European signal…"
- The Bourne Ultimatum, @ 10:19
On July 9th, 2008, the U.S. Senate voted 69 - 28 to amend the old, 1978 FISA law by passing H.R. 6304, the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008." Critics of this legislation have been complaining long and loud that -- beyond the controversial granting of retroactive (and prospective) civil immunity to the telecommunications industry for their alleged lawbreaking at the behest of the Bush administration -- it represents the "death of the 4th Amendment," the "end of privacy" in the U.S. As Anthony Romero of the ACLU noted:
"The bottom line is that no president should have the power to monitor the phones and emails of Americans without a warrant. And no president should have the power to pardon companies that broke the law. This bill was not a "compromise," as some in Congress would like you to believe. The only thing they compromised was your freedom."
Really? Is my "freedom" now in fact compromised? How much of this is overwrought doom-is-upon-us hype, and how much is of legitimate concern? e.g., I routinely take the trouble to actually closely read legislative proposals and bills signed into law, and also listen/read carefully the views of respected constitutional law analysts. For example, here are some recent observations of noted constitutional law professor Jonathan Turley on MSNBC on June 19th, 2008:
"This is a very frightening bill. What people have to understand is that FISA itself is controversial. This court issued tens of thousands of warrants granted applications for surveillance without turning down any. Only recently did they turn down two...What you're seeing in this bill is an evisceration of the Fourth Amendment of the Constitution. It is something that allows the president and the government to go in to law-abiding homes on their word alone, their suspicion alone, and to engage in warrantless surveillance. That's what the framers that drafted the Fourth Amendment wanted to prevent."
What is a concerned, studious, and patriotic lay person to rationally think?
  • NOTE: While I would tend to agree in principle with Mr. Romero that "no president should have the power to pardon companies that broke the law," the simple constitutional fact -- like it or not -- is that the president does in fact have such power. His pardon power is plenary "except in cases of impeachment." [Article II Section 2] I have not the slightest doubt that President Bush will have to order pardon pens by the carton for use in January 2009.
  • NOTE2: Moreover, Mr. Romero's assertion that "no president should have the power to monitor the phones and emails of Americans without a warrant" will remain just that -- an assertion, however sensible and noble (and one with which I agree) -- unless and until SCOTUS rules otherwise. I have long simply assumed that my emails were the digital equivalent of postcards. My phone calls? That's another matter, but one apparently in (mostly behind-the-scenes) flux absent some unequivocal ruling one way or the other.

I see perhaps minimally three, two of which overlappingly map to 4th Amendment "Framers' intent" principles:

  1. General Warrants: FISA warrants are to be granted for a period "up to a year," and it is not completely clear at this point regarding whether they will each have to focus on a single "suspect" (or conspiratorial group of them), or whether they may be granted as bulk "dragnet" authorizations. The 4th Amendment requires warrant-related individual "probable cause" and search/seizure specificity;
  2. Writs of Assistance: The widely hated 18th century British Crown colonial practice with roots in the medieval clamorem et uthesium tradition ("Hue and Cry"), Writs of Assistance were used to command the assistance of the private sector in the search for miscreants, malcontents and contraband, typically in concert with the "General Warrants" commonly issued by the Crown. Section 702(h)(1) - (4) and (5)(A) - (E) of the new law seem to constitute such orders directed specifically at the telecoms, the very type of orders that constitutional historians regard as a prime motivator for the American revolution and subsequent codification of our 4th Amendment;
  3. Legislative usurpation of Article III: Retroactively and prospectively immunizing the telecommunications industry from violations of federal and state criminal laws, as well as preemptively abrogating the contractual/tort claims of consumers, seems to violate the Judicial Clause of the Constitution. Moreover, H.R. 6304 Section 803(a)(1) - (4) ["Preemption"] posits that "no state shall have authority to" investigate, regulate, sue, or otherwise sanction the telecoms over anything related to FISA cooperation.
Obviously, beyond the blanket immunity provision, a major concern among civil libertarians is that of "mission creep," which is what led the 1978 enactment of FISA in the first place 30 years ago, in the wake of revelations of the Nixon administration's egregious misuse of intelligence agencies for domestic political spying.
 Today, beyond the potential for renewed domestic political surveillance (arguably in violation of the First Amendment as well as the 4th; see below), we see the post-9/11 "War on Terror" bandied about as justification for blurring the lines with respect to "ordinary" law enforcement, weakening or even eliminating Due Process constraints that have long been fundamental to our constitutional system.

For example, in the name of "combating terrorism," Boston police proposed a couple of years ago that anyone riding on any sort of public transit be subject to random searches, absent any cause, at any time during their travels. A similar thing happened in New York City in which the transit police announced a plan to randomly search the bags of anyone entering subway terminals. Of course, the authorities insisted on their "right" to use any "conventional crime" fruits of such examinations (e.g., illegal drugs being the most likely) for subsequent arrests and prosecutions.

Here in Nevada, a particularly agitated state legislator even proposed post- 9/11 that "terrorism" be defined by statute as "any attempt to interfere with the activities of law enforcement." That the initiative got no traction only partially serves as evidence for lack of public support for the mindless sentiment.

While I'm no advocate of any Straw-Man-spurious 4th Amendment "privacy right to lawbreaking," neither am I willing to concede the necessity of such overt Police State tactics in deference to their putative (and equally spurious) "effectiveness" value.
"But, If we just had all of the hay, we'd know exactly where the needles are. They're right there in the hay!"

Lead H.R. 6304 sponsor Senator Kit Bond said during final debate this week that"[T]here is nothing to fear in the [new FISA] bill, unless you have Al Qaeda on your speed dial."

Is that so? Absent truly independent legislative and judicial oversight and regulation, how can we verify such a claim? We're supposed to simply "trust" the government that they'll only be after the "Bad Guys"? That they would never abuse their unfettered power?

Color me empirically skeptical.

As one who did quite a bit of historical and constitutional case law research into the salient social and legal aspects of "privacy" and 4th Amendment issues a decade ago in the course of
my graduate studies (and subsequently in opposition to the federal government's proposed post-9/11 "Total Information Awareness" initiative), I thought it useful to revisit the topic in additional depth in order to attempt to resolve many of my own troubling continuing questions and perhaps shed some rational new light on the topic.

There will be much to investigate and discuss. There remains much that seems intractably unclear. My words of 1998 resonate equally well today:
"Privacy" is a term with multiple connotations. We mandate by law and social norms that certain activities be conducted "in private." The privacy synonyms "secluded" and "exclusive" are positive keywords in real estate advertising. A media microphone rudely thrust in the face of a grieving parent who has just lost a child to an accident is disdainfully viewed as an egregious "invasion of privacy." Similarly, celebrities bemoan (and frequently litigate against) their losses of privacy at the hands of their tabloid pursuers. In some major public policy contexts, however, privacy seems to be what we value most for ourselves, and what we would most like to deny others by casting aspersions on their privacy claims.
If you doubt, for instance, that we 'mandate by law...that certain activities be conducted "in private",' try urinating in public in front of a police officer sometime (say, maybe after attending that Jimmy Buffett concert you now only dimly remember in the wake of all that tequila). Under Nevada law, after trial and conviction you will subsequently be permanently in the system as -- minimally -- a "Tier I Sex Offender" ("flashing," "streaking," and, yes, peeing in public are considered "sex crimes" here -- only the first of which might truly be regarded as one worthy of the subsequent moniker "Sex Offender").


"The Panopticon was proposed as a model prison by Jeremy Bentham (1748-1832), a Utilitarian philosopher and theorist of British legal reform."

"The Panopticon ("all-seeing") functioned as a round-the-clock surveillance machine. Its design ensured that no prisoner could ever see the 'inspector' who conducted surveillance from the privileged central location within the radial configuration. The prisoner could never know when he was being surveilled -- mental uncertainty that in itself would prove to be a crucial instrument of discipline..."

"Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary..."

- Michel Foucault
Are we all inexorably becoming "inmates" of a Brave New Techno-Panoptic World, left with but a facade of "freedom," a dessicated faux freedom enervated by the chronic suspicion that authority is increasingly monitoring our every action -- "all claws for now withdrawn" perhaps -- but able to pounce without warning should we get "too far out of line"?

Author David Brin ("The Transparent Society: Will Technology Force us to Choose Between Privacy and Freedom?") argues that panoptic surveillance is inevitable.

A Modern Concern

The issue of threatened privacy has spawned a flood of books, articles and media exposés -- from Janna Malamud Smith's thoughtful Private Matters, and the erudite Right to Privacy, by Ellen Alderman and Caroline Kennedy, all the way to shrill, paranoic rants by conspiracy fetishists, who see Big Brother lurking around every corner. Spanning this spectrum however, there appears to be one common theme. In almost every case, the author has responded with a call to arms, proclaiming that we must become more vigilant to protect traditional privacy against intrusions by faceless (take your pick) government bureaucrats, corporations, criminals, or just plain busybodies.

That is the usual conclusion... but not here.

For in fact, it is already far too late to prevent the invasion of cameras and databases. The djinn cannot be crammed back into its bottle. No matter how many laws are passed, it will prove quite impossible to legislate away the new surveillance tools and databases. They are here to stay.

Light is going to shine into nearly every corner of our lives.

The real issue facing citizens of a new century will be how mature adults choose to live -- how they might compete, cooperate and thrive -- in such a world. A transparent society.

Regarding those cameras for instance -- the ones topping every lamp post in both City One and City Two -- we can see that very different styles of urban life resulted from just one decision. From how people in each town answered the following question.

Will average citizens share, along with the mighty, the right to access these universal monitors? Will common folk have, and exercise, a sovereign power to watch the watchers?
The troubling rub is in his last question above: "Will average citizens share, along with the mighty, the right to access these universal monitors?"

Not if the mighty have their say, in all likelihood. The reflexive invocation of "National Security" has become a deafening daily commonplace since 2001. There can be no independent judicial or regulatory oversight with respect to FISA type operations, it is argued, because such might "reveal sources and methods." (A similar argument is made in support of denying due process to "War on Terror" detainees held at Gitmo and CIA "black sites" around the world.) The President routinely invokes "Executive Privilege" to stymie any inquiry into the
Executive Branch he wishes to quash. Favored sole-source military contractors now brazenly claim that their contract cost/performance records constitute "proprietary business data" beyond the oversight purview of regulatory departments and agencies.

Recent case in point:

WASHINGTON [AP, July 11, 2008] - A federal appeals court on Friday set back the White House's efforts to keep the names of its visitors secret.

The three-member panel of judges threw out the government's appeal in a case brought by a watchdog group trying to find out how often prominent religious conservatives visited the White House and Vice President Dick Cheney's residence.

The Bush administration was appealing a federal judge's decision last December that the government should gather the records the watchdog group wants.

Despite the ruling against the White House, public disclosure of visitor logs is by no means assured.

The Bush administration can still raise a variety of legal arguments in an attempt to keep the identities of White House visitors secret...
So, it would seem that the mighty will continue to buy or politically bully or otherwise stonewall their way into their own thoroughly protected "privacy," while the rest of us will be left to wonder to what extent our emails are being surveilled, our internet viewing habits logged and archived (along with our telephone records), our movements and locations tracked via GPS triangulation of our cell phones, and so on.

Maybe "constitutional privacy" is a goner (to the extent it ever fully existed). Or soon to be. With it, though, may go the rest of the constitutional self-government we still take pains to laud.


 Interesting, this, by Washington Monthly writer Kevin Drum. Beyond the 4th Amendment, there's a direct 1st Amendment implication:
WHOLESALE SURVEILLANCE....Former New York Times reporter Chris Hedges explains how the new FISA legislation will handcuff him and his colleagues:

"This law will cripple the work of those of us who as reporters communicate regularly with people overseas, especially those in the Middle East. It will intimidate dissidents, human rights activists and courageous officials who seek to expose the lies of our government or governments allied with ours.

....The reach of such surveillance has already hampered my work. I was once told about a showdown between a U.S. warship and the Iranian navy that had the potential to escalate into a military conflict. I contacted someone who was on the ship at the time of the alleged incident and who reportedly had photos. His first question was whether my phone and e-mails were being monitored.

What could I say? How could I know? I offered to travel to see him but, frightened of retribution, he refused. I do not know if the man's story is true. I only know that the fear of surveillance made it impossible for me to determine its veracity."

There are (at least) two issues here. First, under the old law there were ways for reporters to be relatively sure that they could evade surveillance. Use random pay phones, anonymous email accounts, etc. After all, the government can't listen to every conversation, can they? Well, now they can, and reporters' sources know it. It's going to be a lot harder to convince them that it's safe to talk.

Second, reporters who cover terrorism and the Middle East are pretty obvious targets for NSA surveillance since they talk to lots of bad guys. This surveillance is illegal, of course, and under the old FISA law it was hard to get around this because the FISA court had to issue a warrant if NSA wanted to tap the phone of an American citizen. But now? They don't need to directly tap reporters' phones. They're listening to every piece of traffic that goes through American switches and NSA computer software is picking out everything that seems interesting — and no matter what they say, doesn't it seem likely that their algorithms are going to be tweaked to (accidentally! unintentionally!) pick up an awful lot of reporter chatter? It'll eventually be "minimized," but algorithms are infinitely malleable, they're hard for laymen to understand, and they can almost certainly be changed to accomplish the same thing if a judge happens to order modifications. What's more, it hardly matters: the new law allows NSA to hold on to all those minimized conversations forever even if a judge eventually decides the surveillance was illegal.

Welcome to the wholesale surveillance state. Enjoy it.
So, it's not just about the 4th Amendment. There's an inextricable 1st Amendment concern to boot. You simply cannot have a free press within the "asymmetric" Panopticon currently under construction.


I read a thoroughly depressing article today from the April 2006 issue of The Atlantic Monthly entitled "Big Brother is Listening," by James Bamford. Read it in its entirety carefully.

"The NSA has the ability to eavesdrop on your communications—landlines, cell phones, e-mails, BlackBerry messages, Internet searches, and more—with ease. What happens when the technology of espionage outstrips the law’s ability to protect ordinary citizens from it?"

[click the image to enlarge]

The history recounted in this article goes to the very heart of today's FISA re-authorization controversy [excerpts below, emphases mine]:

...the requirement that the government show "probable cause" that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court. Concerned about preventing future 9/11-style attacks, President Bush secretly decided in the fall of 2001 that the NSA would no longer be bound by FISA...

...Contrary to popular perception, the NSA does not engage in "wiretapping"; it collects signals intelligence, or "sigint." In contrast to the image we have from movies and television of an FBI agent placing a listening device on a target's phone line, the NSA intercepts entire streams of electronic communications containing millions of telephone calls and e-mails. It runs the intercepts through very powerful computers that screen them for particular names, telephone numbers, Internet addresses, and trigger words or phrases. Any communications containing flagged information are forwarded by the computer for further analysis...

...It used to be that before the NSA could place the name of an American on its watch list, it had to go before a FISA-court judge and show that it had probable cause—that the facts and circumstances were such that a prudent person would think the individual was somehow connected to terrorism—in order to get a warrant. But under the new procedures put into effect by Bush’s 2001 order, warrants do not always have to be obtained, and the critical decision about whether to put an American on a watch list is left to the vague and subjective "reasonable belief" of an NSA shift supervisor...

More than seventy-five years ago, Supreme Court Justice Louis Brandeis envisioned a day when technology would overtake the law. He wrote:

Subtler and more far-reaching means of invading privacy have become available to the government … The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home … Can it be that the Constitution affords no protection against such invasions of individual security?

Brandeis went on to answer his own question, quoting from an earlier Supreme Court decision, Boyd v. U.S. (1886): "It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property."

...Today, the NSA has access to more information than ever before. People express their most intimate thoughts in e-mails, send their tax returns over the Internet, satisfy their curiosity and desires with Google searches, let their hair down in chat rooms, discuss every event over cell phones, make appointments with their BlackBerrys, and do business by computer in WiFi hot spots.

NSA personnel, the customs inspectors of the information superhighway, have the ultimate goal of intercepting and reviewing every syllable and murmur zapping into, out of, or through the United States. They are close to achieving it...

Frank Church, the Idaho Democrat who led the first probe into the National Security Agency, warned in 1975 that the agency’s capabilities

"could be turned around on the American people, and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it is done, is within the reach of the government to know. Such is the capacity of this technology."

It was those fears that caused Congress to enact the Foreign Intelligence Surveillance Act three years later. "I don't want to see this country ever go across the bridge," Senator Church said. "I know the capacity that is there to make tyranny total in America, and we must see to it that [the National Security Agency] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."
Read it. All of it. Again, carefully. Think about the ramifications. All of them.

One thing that just jumped out at me: 'Oh, so this is why President Bush has been so petulantly, intransigently adamant about getting total telecom immunity -- repeatedly threatening to veto any bill not containing it, even if he got everything else he asked for. He could not risk the documented judicial exposure of the sheer extent of the lawbreaking, evidence that might well publicly emerge via the civil "discovery" process.'

The other disquieting question is 'how could a President so unpopular at this stage, a lame duck faced with a democratic majority in Congress, manage to prevail on this?'

Well, good question.


True -- albeit a banal and irrelevant, if commonplace disavowal. Neither do the words "homosexual" nor "marriage" nor "fetus/foetus," nor "abortion," nor most of the estimated half-million words comprising the English language appear in the Constitution. The only pertinent question here is whether the phrase "right of the people to be secure in their persons, papers, houses, and effects" is the semantic equivalent, intended to confer a presumptive right to privacy (not "absolute," simply "presumptive"), one breachable by authority only upon independently confirmable objective showing of exigent, necessary, and proper "cause" (be it the requisite "probable" standard for issuance of valid, narrowly focused warrants, or the more hazy, seemingly lesser "reasonable").

BTW/FYI- the word "privacy" appears only once (irrelevantly) in the 85-essay totality of The Federalist Papers. The word "private" appears therein 44 times, though 41 or so of those are by no means germane to espousing the cause of personal privacy. More on this later, especially concerning the nexus between the word "liberty" (136 times in The Federalist Papers) and the subsequently ratified "right of the people to be secure in the persons, papers, houses, and effects..."The core question: Is "liberty" possible absent lawful, rational deference to "privacy"?


The common lexical definition of the word "probable" often unhelpfully employs the somewhat circular exemplar referent term "likely" (which, in turn invariably alludes reciprocally to that which is "probable"). Minimally, as an empirical matter, "probable" connotes that which is/was "more likely than not" to occur or to have occurred -- i.e., greater than a 50% chance (or recorded outcome).

Well, also as an empirical matter we could review Judge X's entire record of his/her issuance of search warrants to determine post hoc whether the judge acted in the aggregate within the confines of legal "probable cause" -- i.e., did the warrants lead to subsequent arrests and and at least some sort of convictions (including pleas down to lesser offenses) more than half of the time. Were, for example, Judge X only "batting .300" or less when stepping up to the warrants plate, you could justifiably accuse such a jurist of being clueless with respect to any commonsensical notion of "probable cause."

I am unaware of any such studies. They may well have been done. Relatively recent DOJ statistics reveal a better than 90% conviction rate among those charged federally, though the stats are silent with respect to search warrants issued prior to arrests and dispositions. Again, as a retrospective empirical matter, a quantitative definition of hewing to search warrant "probable cause" would rightfully work out to the number of successful dispositions (findings of "guilt") divided by the number of search warrants issued.

In the real world of law enforcement, though, things are not so clear.

Black's Law Dictionary, 7th Edition

probable cause. A reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items associated with a crime. Under the Fourth Amendment, probable cause -- which amounts to more than a bare suspicion but less than evidence that would justify a conviction -- must be shown before an arrest warrant or search warrant may be issued. -- Also termed reasonable cause; sufficient cause; reasonable grounds. Cf. REASONABLE SUSPICION.

"Probable cause may not be established simply by showing that the officer who made the challenged arrest or search subjectively believed he had grounds for his action. As emphasized in Beck v. Ohio [379 U.S. 89, 85 S.Ct, 223 (19640]: 'If subjective good faith alone were the test, the protection of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects" only in the discretion of the police.' The probable cause test, then, is an objective one; for there to be probable cause the facts must be such as would warrant a belief held by a reasonable man." Wayne R. LaFave & Jerold Israel, Criminal Procedure 3.3 at 140 (2nd ed. 1992).
An attorney of my acquaintence once wryly remarked "we spend $100,000 to go to law school for three years to try to learn the meaning of the word 'reasonable'."

BTW- What (for those of you wondering about 4th Amendment "Original Intent") sufficed as "probable cause" circa the birth of our nation? Consider this, from William Cuddihy's 1,800+ page, four volume "Origins and Original Meaning of the Fourth Amendment" (Claremont College, 1990; widely regarded as the seminal text on the topic):

Not all elements of search and seizure evolved rapidly in the 1780's. The belief that arrests, searches, and seizures required adequate cause, which a disinterested magistrate had found to be so, existed long before the revolution. Only a few statutes of 1776-87, however, guarded against caprice as the basis of arrest or search warrants by allowing magistrates to evaluate the requests for those warrants. In most cases, judges issued warrants automatically on a person's sworn complaint that he suspected, rather than believed, that a place or person was connected to a crime. [pg 1351, emphasis mine]
In other words, someone with some color of authority said so. Many times simply subjectively, absent any sort of independently confirmable objective evidence.


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Are warrants always required? Notwithstanding such a widely held belief, the answer is "no." Jurisprudential scholars generally parse the 4th Amendment into [1] the "reasonableness clause" and, [2] the "warrants clause," separated not just lexically, but operationally by the conjunctive "and." Settled case law has long established warrant requirement exemptions such as the "plain view exception," "exigent circumstances exception," "search pursuant to a lawful arrest," and the recent "administrative departures exception" -- the latter being progeny of suspicionlesss drug testing cases, wherein it has been ruled that, because a positive drug test result is not used as evidence for prosecution of criminal drug possession and use, warrantless drug testing is simply "administrative" in nature, not prosecutorial, and consequently does not implicate the 4th Amendment. As I wrote in 1998:
Following a trend developed in the lower courts over the last generation, the Supreme Court has allowed "administrative" or "special needs" exceptions to the "probable cause" and "warrant" requirements of the Fourth Amendment. In short, since positive drug test results are supposedly "confidential" and not referred for prosecution—despite the fact that they constitute "scientific evidence" of recent criminal conduct—the Court majority finds them acceptable as mere non-discretionary and "evenhanded" administrative functions for which the probable-cause evaluating function of the magistrate is rendered unnecessary. In Skinner v. Railway, Justice Kennedy sings the praises of this curious nuance of evenhandedness, arguing that "arbitrary" would be his (hallucinatory) spectre of magistrates abusing their power by opting to "arbitrarily" issue warrants without cause against targeted individuals. Better to trade in this type of speculative (and preposterous) arbitrariness for the operational evenhandedness of indiscriminate investigation. Consider for a moment, however, Justice O’Conner’s dissenting rejoinder in the Vernonia high school drug testing case:

"Perhaps most telling of all, as reflected in the text of the Warrant Clause, the particular way the Framers chose to curb the abuses of general warrants—and by implication, all general searches—was not to impose a novel 'evenhandedness' requirement; it was to retain the individualized suspicion requirement contained in the typical general warrant, but to make that requirement meaningful and enforceable, for instance, by raising the required level of individualized suspicion to objective probable cause...While the plain language of the Amendment does not mandate individualized suspicion as a necessary component of all searches and seizures, the historical record demonstrates that the Framers believed that individualized suspicion was an inherent quality of reasonable searches and seizures... Protection of privacy, not evenhandedness, was then and is now the touchstone of the Fourth Amendment."
It is a complex and frequently contradictory history here, this contentious 4th Amendment.

An interesting side note regarding the aforementioned "severability" issue obtains in
Leonard W. Levy's "Original Intent and the Framers' Constitution." Below is James Madison's last 4th Amendment draft recommendation. Note how it differs from the final adopted text.
The rights of the people to be secured in their persons, their houses, and their other property, from all searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. [Levy, pg 243]
This clearly implied that warrants were always to be required, but that wording was subsequently altered "during the debate by the House acting as the Committee of the Whole...The entire provision was split into two parts separated by a semicolon. The first part laid down the standard against unreasonable searches and seizures. The second part required probable cause for the issue of a specific warrant." [Levy, op cit., 244]

Which, of course, opened the door for the ensuing endless wrangling over the proper constitutional extent of searches conducted without warrants, which continues to this day -- most recently exemplified by the controversial "warrants exceptions" aspect 2008 FISA legislative renewal.

"Do as we say..."

While quoting Levy at length here in defense of moral and constitutional due process (which I will continue to do), it seems also fair to cite his words pertaining to expedient 18th century colonial hypocrisy:

The war years were the worst possible for testing whether American practices matched American ideals or constitutional provisions. Search and seizure was a method of fighting the enemy and those suspected of adhering to his cause. Perhaps the grossest violation of a constitutional provision occurred in Pennsylvania in 1777. Three years earlier Congress had complained about customs officials breaking and entering without authority. In 1777, though, Congress urged Pennsylvania's executive council to search the homes of Philadelphians, mostly Quakers, whose loyalty to the American cause was suspect. Congress wanted to disarm such persons and to seize their political papers Pennsylvania's executive council authorized a search of anyone who had not taken an oath of allegiance to the United States. The searches of at least six Quaker homes were conducted cruelly and violently, and all sorts of books, papers, and records, were confiscated; over forty people were arrested and deported without trial, let alone conviction, to Virginia, where they were detained until the next year. Nothing that the British had done equaled the violation of privacy rights inflicted by Pennsylvania on its "Virginia Exiles," in defiance of the state constitution and a writ of habeas corpus by the state chief justice, but with the support of Congress.

American adherence to professed principles stands up far better and more fairly tested after the shooting stops... [Levy, op cit., 239-40]
Thus, the impetus to extraconstitutionally "do whatever is necessary" amid the "War on Terror," which the likes of George W. Bush and Dick Cheney regard as their unfettered, higher-priority mandate, is really nothing new.


That petulant, exasperated retort was a riff that Judge Robert Bork proffered during his unsuccessful Supreme Court confirmation hearings, a motif also he espoused in his book "The Tempting of America: The Political Seduction of the Law":
[On Griswold v. Connecticut]
"...Douglas did not explain how it was that the Framers created five or six specific rights that could, with considerable stretching, be called 'privacy,' and, though the Framers chose not to create more, the Court could nevertheless invent a general right of privacy that the Framers had, inexplicably, left out. It really does not matter to the decision what the Bill of Rights covers or does not cover...The Court majority said there was now a right of privacy but did not even intimate an answer to the question, 'Privacy to do what?' [emphasis mine - BG] People often take addictive drugs in private, executives conspire to fix prices in private, Mafiosi confer with their button men in private. If these sound bizarre, one professor at a prominent law school has suggested that the right of privacy may create a right to engage in prostitution..." [pp. 98-9]
In the undergrad "Critical Thinking" curriculum, this is known as the "fallacy of misplaced burden of proof." It goes to the heart of the very concept of a "presumptive" right. Authority properly has the burden of setting forth minimally justifiable evidence ("reasonable/probable cause") when seeking to breach an individual's private sphere. Just as it is subsequently authority's task to surmount your Constitutional "presumption of innocence" by presenting factual "proof beyond a reasonable doubt" to convict you of a charged crime. It is not the other way around.

Yes, Judge Bork, there is no Constitutional protection for the violating of laws. Neither is there, Judge Bork, proper Constitutional authority for the arbitrary abrogation of the privacy rights of all in mindless pursuit of the miscreant. Were we simply to search and seize everyone, we would in fact catch all of the criminals.

At the utter, unacceptable cost of the very freedom of the law-abiding we espouse as a founding principle. That inconvenient little "liberty" thing.

At this point, more of the observations of Leonard Levy seem instructive:

If much of contemporary constitutional law is about rights, the reason is that as government gets larger, more complex, more powerful, and more intrusive, the need to stay Caesar's hand increases. If government exists to protect the individual, as the preamble to the Declaration of Independence suggests, and as the provisions of the Constitution suggest as strongly, then the Court must fortify our rights. Rehnquist and Bork mislead when they insist that because particular rights are not specified they have no constitutional existence. The Constitution exists to describe and limit the government, not to describe and limit rights. Government power must be exercised in subordination to the right of the individual, as much as possible. The fact that nothing in the Constitution refers to the rights of homosexuals or a woman's right to abortion is of considerably less importance than the fact that nothing in the Constitution militates against those rights (so long as the fetus is not regarded as a person). Chief Justice John Marshall's rule of construction was that if the Constitution does not prohibit, it can permit and protect. The burden of proof should always be on the government to show that rights claimed must be denied lest legitimate ends go unfulfilled because no alternative means are possible and the needs of government are compelling.

The historic mission of judicial review is supposed to be the vindication of individual freedoms...the Ninth Amendment put the Framers' thumbs down on the "rights" side of the scales that weigh rights against powers. Those who measure individual rights against the rights of society forget that society has a profound stake in the rights of the individual; we possess rights as individuals not only because they inhere in us and serve to fulfill us as individuals but because we function as a free society and maintain its openness by respecting personal differences. The Framers were deeply concerned about the humanity that the fundamental law should show even to the criminal offender not because they wanted to coddle criminals but because they were tough-minded enough to understand that the enduring interests of society require justice to be done as fairly as possible...

The Constitution of the United States is our national covenant, and the Supreme Court is its special keeper. The Constitution;s power of survival derives in part from the fact that it incorporates and symbolizes the political values of a free people. It creates a representative, responsible government empowered to serve the great objectives specified in the Preamble, while at the same time it keeps government bitted and bridled...

The Court should have no choice but to err on the side of constitutional liberty and equality of the individual, whenever doubt exists as to which side requires endorsement. Ours is so secure a system, precisely because it is free and dedicated to the principles of justice, that it can afford to prefer the individual over the state. [Levy, op cit., pp 392 -5]
BTW, I have yet to find any published material wherein the anti-privacy Judge Bork subsequently railed against the enactment of 8 U.S.C § 2710, 1988:
During the 1988 Senate confirmation hearings on Robert Bork's nomination to the U.S. Supreme Court, "Washington City Paper," a Washington, DC weekly, received from a videotape rental store a list of titles showing Bork's videotape rentals. The newspaper published the story, including the list, while the hearings were going on.

Bork had testified that the U.S. Constitution affords no protection of privacy. It was in that spirit, said Jack Shafer, editor of Washington City Paper, that the video store volunteered the list to a reporter, and in the same spirit the newspaper published it.

The thinking at the paper was that, given his views on the Constitution and privacy, surely Bork would not mind publication of this arguably private information. There was nothing shocking about the titles he had rented, and editors had no doubt about the authenticity of the information or of its source.

Several senators denounced the paper for publishing the story, and Congress soon passed what is often referred to as the "Bork Bill" ( The Video Privacy Protection Act, 18 U.S.C § 2710, 1988), a law designed to prevent unauthorized release of specific titles rented by identifiable individuals.

Yeah, what about that loaded question (i.e., the snide insinuation that your asserting your right to privacy means you have something embarrassing or worse to hide)?

Beyond the problematic "it's none of your business" retort, one of my most succinct rejoinders is this:

Given that I have nothing to hide, the probability of your truly finding actionable wrongdoing within my private life is exactly zero. The possibility of error on your part that might cause me significant harm, on the other hand, is -- however mathematically slight -- infinite by comparison. Where, precisely, is the value proposition in this for me?
Beyond that, we all do in fact have things to legitimately "hide" from those having no legitimate need of access to them, e.g., our Social Security and financial account numbers for patently obvious starters.

I was once served with divorce papers by a process server in the employ of a NY attorney retained by a woman I'd never met. My wife once spent more than a year trying to expunge a past due $27 medical lab bill incurred by her stepdaughter (my daughter), an egregiously errant, recursive "90+ day derog" that held up both a car loan and a subsequent mortgage application. Several years ago we awoke to find that someone had begun a Christmas season shopping spree in Paris, France using our debit card number.

Nearly everyone has his or her pet data screwup/filching horror stories.


A pet "privacy" peeve of mine concerns the too-casual treatment of peoples' personal data. Below: one of my more effusive and loose-styed rants I posted on my music blog last year:

Sometimes ya just gotta laugh. So, I've been diligently fillin' out all these job apps every week since I got laid off. Well, a local company (DataX LTD) responded and asked me to come in for an interview for an analyst position ('cuz'a my SAS and regression modeling chops). They sent me an additional application to fill out, along with a background investigation authorization form. Now, this company touts themselves as being this saavy hi-tech outfit that does verification/authentication research and analysis for businesses, claiming that their "extensive and comprehensive analytics process of data verification and authentication identifies a unique individual with unique DNA."

Fair enough. We all want the fraudsters and other miscreants effectively uncovered and neutralized. And, fair enough to expect to be subjected to a background check (which I've already been through several times). But, this just cracked me up:

I hereby authorize DataX LTD and its designated agents and representatives to conduct a comprehensive review of my background causing a consumer report and/or an investigative consumer report to be generated for employment purposes.

I understand that the scope of the consumer report/investigative consumer report may include, but is not limited to, the following areas:

Verification of social security number; current and previous residences; employment history including all personnel files; education including transcripts; criminal history records from any criminal justice agency in any or all federal, state, county jurisdictions; and any other public records.

I further authorize any individual, company, firm, corporation, or public agency (including the Social Security Administration and law enforcement agencies) to divulge any and all information, verbal or written, pertaining to me to the Company or its agents. I further authorize the complete release of any records or data pertaining to me which the individual, company, firm, corporation, or public agency may have, to include information or data received from other sources.

I hereby release the Company, the Social Security Administration, and its agents, officials, representatives, or assigned agencies, including officers, employees, or related personnel both individually and collectively, from any and all liability for damages of whatever kind, which may, at any time, result to me, my heirs, family, or associates because of compliance with this authorization and request to release...[emphases mine]
"verbal"? In other words, they arrogate to themselves the right to collect any unverifiable hearsay about me from any anonymous source they wish through their gumshoe proxies, and, if any of the stuff is untrue and gets out of their control and causes me grief, well, boo-hoo-for-BobbyG (and, BTW, "consumer report" means they'd do a credit bureau pull on me as part of the rap sheet).

Am I the only cat around with an acute sense of irony? These people employ the "DNA" metaphor in extolling themselves to the business world, i.e., exactitude, man; finely-chiseled accuracy and precision in the assessment of those that come under their scrutiny for their clients. Sorry, I gotta have the same standard when it comes to vetting me.

I have a bit of a history when it comes to defending our right to privacy and to not have others trafficking in our personal data absent cause and diligence with respect to confidentiality.

I'm probably not gonna get this particular gig.


Yep, just like I figured. Email exchange with the recruiter today:


I hope everything went well with the extraction of your wisdom tooth. I fowarded your email to the hiring managers, and because of our company’s compliance process, it is "mandatory" that all candidates sign the background authorization form for potential employment with our companies. Due to your personal principles concerning the background check authorization, I will need to cancel Friday’s interview (5/11/07 at 2:00 pm). Should your thoughts change in the near future please get a hold of the company’s Corporate Recruiter, [Name deleted]. She will be more than happy to speak with you.

Thank you and have a wonderful day,

[ Name deleted]
My response:
Thank you. Mouth full of bloody cotton at the moment, but, it went fine.

I regret to insist that I will not sign that authorization as presented, solely on the basis of the objectionable clause I cited. The rest of it is acceptable overall.

I find it both ironic and hypocritical that a company touting itself as one that conducts verifications and authorizations of people to an accuracy level they characterize as "DNA" also demands that job applicants agree to permitting anything and everything to be collected about them, whether germane or not, whether accurate or not, and insists on being indemnified for doing so as well. My view is simple, and utterly rational: You collect personal data about me to be used for lawful decisionmaking, you are responsible for [1] its accuracy, [2] its relevance to the employment vetting, and [3] its subsequent confidentiality. I realize such a stance makes me "difficult," that most people simply passively go along with such legal boilerplate, seeing it as inevitable. I do not. And will not.


Best regards -

Bobby Gladd
Stupid. "Compliance," my 'face.' Of course, the Suits in HR will construe it as my being afraid to submit to a BKG investigation. Duh: I already have an FBI file, complete with fingerprints, from my days as a bank officer.

I'm being asked to believe that, in order for this company to be "in compliance" with, say, federal, state, and local governmental regulatory agencies (and that's simply what "compliance" means in this context), they are required to collect anything and everything thing they care to about me (via any unnamed surrogates of their choosing), whether job-relevant or not, whether true or not, and that, further, such regulatory compliance dictates that they be excused from any liability pertaining to the consequences of any cavalier treatment of such information should it cause me personal or economic harm were it to be subsequently released (either willfully or negligently) to others without my knowledge or consent. (Also: what if I submitted to their background investigation terms, and then asked to see the dossier collected about me? "Oh, no. Sorry, that information is proprietary and confidential." How much you wanna bet?)

I may have been born at night, but it wasn't last night, LOL!

Someone has to say "no!" to this kind of stuff. I am one of them.

Maybe that's why I can't seem to find a job now.

My new Harpers came today, the August 2008 subscription issue. Since they don't post current articles online, I manually excerpted the following, apropos of the overall discussion and my of own sense of the ironies with respect to the topic -- e.g., here I am, this indefatigable defender of "privacy" who is also, voluntarily, so readily and widely visible on the internet.

My latest joke on the Vegas saying is that "What Happens in Vegas Stays on YouTube." Meaning that, nothwithstanding that we often angrily demand in the aggregate our "right to privacy," our culture is increasingly one enthralled in the lurid grip of an ongoing and growing voyeurism-exhibitionism minuet. Garret Keizer puts it better than could I:


Requiem for the private word
by Garret Keizer

Harper's, August 2008

Robert Gensburg has practiced law in my community since 1967. His wife, Leslie, hangs out with our friend Ellen, who used to own the bookstore in town. According to local usage the Gensburgs count as my neighbors, though they live some miles from my house and I'm not sure I would recognize them on the street.

Last spring Leslie Gensurg complained to Verizon about problems with her phone service -- peculiar clicks, inaudible dial tone -- but the company was slow to respond, even after Leslie took the extraordinary step of summoning a lineman down from a telephone pole to demand satisfaction. About a month later Lelsie picked up her home phone and was startles to hear her husband speaking to another party from his office, fifteen miles away. It so happens that one of Robert's clients is a thirty-six year old Afghan man who has been held at Guantanamo since 2002. Naturally, the Gensburgs began to wonder if their phones had been tapped. Their suspicions grew with the discovery that massive amounts of confidential information had been moved around on Robert's office computer. A forensic computer expert later determined that the machine had been hacked. Oddities in the Gensurgs' phone service have continued throughout the past year; they have yet to hear a credible explanation from the phone company or the courts. Robert described these experiences recently in a talk entitled "The Rule of Law is Dead."

Well, we sort of knew that, but the point has a way of hitting home when it manifests so close to home. One wants to make a proper neighborly response. It occurred to me that some of us might declare our solidarity with the Gensburgs by inviting the national intelligence services to tap our phones as well.

But such a course has obvious drawback, not the least of which is redundancy. In essence we have been proffering that invitation, to our government, and to one another, for about as many years as Robert Gensburg has been practicing law...

...I grew up in an era of defining moments...Here is mine: it was the moment when Alan Funt first said, "Smile, you're on Candid Camera." More precisely, it was the moment when someone first decided that the appropriate response to being tricked, ridiculed, and photographed into the bargain was to smile. Especially if you were going to be on TV...

...otherwise intelligent people still assert that the Kinsey Report "revealed the sex lives of Americans" when all it revealed was the sex lives of Americans willing to submit to sex surveys -- a submission infinitely more significant than any datum it produced. That there are people who copulate with sheep neither surprises nor interests me; that there are people sheep-like enough to surrender that information on demand is a perversion I find altogether baffling...

...Ironists can also gather good material in the ever more elaborate protestations of confidentiality that attend medical treatment. Your auntie now has a harder time learning the location of your recovery room, but a cancer researcher you've never met (and for whose benefit you've never signed a waiver) has little trouble finding your first and last names in a tumor registry...

...The Luddite in me wants to lay this at the feet of cybertechnology...but the writing was on the wall long before it popped up on anyone's screen. What it said was that by surrendering ourselves to the imperatives of gratuitous curiosity we were not only being better sports; we were building a better world...

...Central to the deterioration of our right to privacy is a metastasizing obsession with the privilege of access. We like to say that this privilege extends to all of us and that it is fundamental to the workings of a democratic society, but who are we kidding? "Access" for the majority applies less and less to the information required for self-governance and more and more to the prurient trivial desire for self-abuse.

It also has less and less to do with consent...

...And finally, and most perniciously...the means of access are in and of themselves a right of access. That the mere ability to record, store, and transmit is fundamentally the license to record, store, and transmit. To suggest otherwise is to be a spoilsport and a control freak, the type who fails to produce the obligatory smile when the shutterbug leaps from the shrubbery...

...It is also to feel the frisson to access, of being made privy to confidences that are, quite obviously, not confidences for long. "Don't tell a soul," someone whispers, and rare is the auditor who whispers back, "Then why are you telling me?" You don't need a weatherman to know which way the wind blows, or up whose skirt, or toward what consequences for the private parts of the average citizen's life.

Of course it wold be silly to claim that our cultural elites, be they liberal or illiberal, are to blame or equally to blame for what is happening to Attorney Gensburg. The official push to reduce our privacy, or "redefine" it, as Principal Deputy Director of National Intelligence Donald Kerr insists we must do, has come overwhelmingly from the Rebublican right. And yet one keeps hearing the emerging conceit that a truly progressive person no longer needs such obsolete encumbrances as confidentiality, copyright, or clothes...

...My late father-in-law, who lived in much closer proximity to his neighbors than I do to mine, awarded his highest accolade to the couple residing in the house across from his garage." The thing I like about the Greenways," he used to say, "is that they mind their own goddamn business."...

...The business of taking back our government and minding our own goddamn business are not contradictory either. Increasingly I believe they come down to the same task, to the fullest possible incarnation of what Justice Louis Brandeis called (in Olmstead v. United States, 1928) "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Of course, that right is meaningful only in a society that ensures liberty and justice, including economic justice, for all But if the defining act of tyranny is making somebody talk, and an early symptom of tyranny is listening in when somebody talks, then the avant-garde of tyranny are those people who, far from caring if somebody listens in when they talk, will actually talk louder for the eavesdropper's benefit.

With that in mind I have made several resolutions. One is to be quicker to as, "Why do you need to know this?" Another is to be quicker to say, "I don't need to know this." The last is to spend more time getting to know people like the Gensburgs...more time with the likes of them and less at those orgies of shallow candor, where everybody gets a hug and nothing is embraced.
OK, we can perhaps reflect on the contexual implications of some of that in light of my foregoing David Brin "Transparent Society" excerpt (scroll back up). Also, we might ruminate on recent assertions of someone Mr. Keizer alludes to in the essay -- Principal Deputy Directory of National Intelligence Donald M. Kerr on October 23rd, 2007:
"Too often, privacy has been equated with anonymity; and it’s an idea that is deeply rooted in American culture. The Lone Ranger wore a mask but Tonto didn’t seem to need one even though he did the dirty work for free. You’d think he would probably need one even more. But in our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past.

"Anonymity results from a lack of identifying features. Nowadays, when so much correlated data is collected and available – and I’m just talking about profiles on MySpace, Facebook, YouTube here – the set of identifiable features has grown beyond where most of us can comprehend. We need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment.

"Protecting anonymity isn’t a fight that can be won. Anyone that’s typed in their name on Google understands that. Instead, privacy, I would offer, is a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured. And it is that framework that we need to grow and nourish and adjust as our cultures change.

"I think people here, at least people close to my age, recognize that those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it’s not for us to inflict one size fits all. It’s a need to have it be adjustable to the needs of local societies as they evolve in our country. Eventually, we can only hope that people’s perceptions – in Hollywood and elsewhere – will catch up."
"Too often, privacy has been equated with anonymity"?

I bristled when I first read that. Beyond the concerns related to online "anonymity," it conjured to me the spectre of brownshirt neo-Nazi officers accosting people in the streets with the random, armed demand "show your Papez, herr citizen! State your business!"

My recently departed father left a leg behind in Europe during WWII fighting that mentality.

Truth is, though, it wil not likely be that rude, crude, and in-your-face brazen -- for the most part. A Kinder, Gentler, sub-rosa Fascism. National Security contractors are working tirelessly on techno-apps such as biometric, facial, and gait recognition ID to complement things such as cell phone/GPS and RFID tracking (including implants embedded in U.S. passports).



Well, while it's long been an assertion met with widespread "take off your tinfoil hat" skeptical derision, consider this news item just in:
When the Phone Goes With You, Everyone Else Can Tag Along
By Ellen Nakashima

Washington Post Staff Writer

Saturday, July 12, 2008; A01

...Consumers for years have been able to carry portable electronic devices that can pinpoint where they are on a map or a mountain trail. But yesterday's launch of the iPhone 3G signals the growing sophistication of an industry -- demonstrating the power of marrying precise location technology with the reach of the Internet on mobile devices.

Merchants can use this information to target ads, malls to entice shoppers, insurance adjusters to calibrate premiums, employers to catch moonlighters and parents to keep an eye on children. But what many users may not realize is that by sharing this information, they are creating often permanent records that can tell not only wireless providers, but also social networking sites, other users, and potentially law enforcement and civil attorneys every place they are and have been, as long as their phone and tracking device are on.

"There's a disconnect between our expectations of when we will be observed and who will be observing us and how that information will be used and what the technology is allowing companies to do," said Jennifer Urban, a University of Southern California law professor...

...Mark Rasch, a security consultant and former federal prosecutor, said the social network aspect of location technologies poses risks. "As these things integrate into Facebook and buddies lists, suddenly I'm not sharing information with five or six people, but maybe with 200 or 300 people," he said. "If the cops want to find me, they don't have to find out where I am; they can go to somebody on my buddies list."...

...The big issues are transparency and user control, said James X. Dempsey of the Center for Democracy and Technology.

"How easy is it for the user to turn the location function on and off, and how easy it is for the user to delete past location information?" he said. "What are the companies collecting? Who are they sharing it with? How long do they store it? And what control does the consumer have over the information? These are the fundamental questions."

The wireless industry, through CTIA The Wireless Association, has issued guidelines for location-based services that stress consumer notice and consent and data security. But, Dempsey said, self-regulation is only part of the solution. What is needed, he said, is baseline federal legislation covering all firms that collect personal electronic data...
You can safely predict that all of the competing next-generation iPhone-ish "me-too" cellular products will embed such tracking capability. The driving imperative will be that of the wishes of marketers, but the surveillance utility will extend far beyond the merely commercial. Count on it.


(Scientia est Potentia = "Knowledge is Power")

The Defense Advanced Research Projects Agency (DARPA) hastily took down the the above TIA website logo and conceptual workflow diagram in the wake of an angry public uproar after its plans hit the news. But while the name associated with that specific stillborn initiative has gone away, the momentum to engage in the same sort of secret surveillance remains. Close on the heels of TIA came CAPPS II in 2003, another boneheaded idea subequently scuttled. As the watchdog organization Electronic Frontier Foundation characterized it:
CAPPS II: Government Surveillance via Passenger Profiling

The "Computer Assisted Passenger Pre-Screening System" (CAPPS II) is a controversial program proposed by the Transportation Security Administration (TSA) to combat terrorism and prevent another hijacking of U.S. flights.

CAPPS II would allow TSA to access personal information about you available in both government and commercial databases, and to use this information to "tag" you according to how much of a threat you appear to pose to the safety of those aboard the airplane.

How Does CAPPS II Work?
CAPPS II uses the information in government and commercial databases to assign each passenger a color-coded score. "Green" means that you do not appear to pose a threat to safety and are free to board the plane. "Yellow" means that you appear to pose a potential threat and must undergo further security checks before being allowed to board. "Red" means that you are likely to pose an "imminent threat" to the physical safety of the people on the plane and will not be allowed to board the flight.

How many people will be classified as yellow or red is unclear; early reports indicated that the figure might be as high as 8 percent, but Admiral James M. Loy, Under Secretary of Transportation Security, later told the Associated Press (Wednesday, September 16, 2003) that the figure would more likely be 3-4 percent. If you are flagged as red you may not only be denied boarding, but also undergo police questioning and possible arrest...
Not too many years ago I walked into an Office Depot store near my house, showed them my Nevada driver's license and answered a couple of basic questions. The clerk then entered this information into a terminal, and I was "green-lighted" in about 30 seconds for about $3,000 worth of PC hardware and software on "0% interest for 18 months" credit. I promptly loaded up my new toys into a shopping cart and took them home.

CAPPS II was to employ a similar "methodology" as an E-Z Terrorist Risk Air Traveler ID system. They wasted approximately $100 million on this baby before throwing in the towel.

A couple of of other noteworthy post- 9/11 surveillance and analysis initiatives below:


From the Wiki:

TALON (Threat and Local Observation Notice), is a database maintained by the Air Force after the September 11th terrorist attacks. It was created in 2002 by Deputy Defense Secretary Paul D. Wolfowitz, in order to collect and evaluate information about possible threats to U.S. servicemembers and civilian workers in the US and at overseas military installations. The database included lists of anti-war groups and people who have attended anti-war rallies. TALON reports are collected by various US Defense Department agencies including law enforcement, intelligence, counterintelligence and security, and are analyzed by a Pentagon agency, the Counterintelligence Field Activity. CIFA has existed since 2004, and its size and budget are secret.

On August 21, 2007, the US Defense Department announced that it would shut down the database, as the database had been criticized for gathering information on peace activists and other political activists who posed no credible threat, but who had been one topic of this database due to their political views...

Also from the Wiki:

ADVISE (Analysis, Dissemination, Visualization, Insight, and Semantic Enhancement) is a research and development program within the United States Department of Homeland Security Threat and Vulnerability Testing and Assessment (TVTA) portfolio. It is reported to be a massive data mining system with the ability to store one quadrillion data entities. The data can be everything from financial records, phone records, emails, blog entries, website searches, and any other electronic information that can be put into a computer system. This information then would be connected to any given American citizen and assess the probability that he or she is a terrorist.

The exact scope and degree of completion of the program is unclear. ADVISE is in the 2004-2006 Federal DHS Budget as a component of the $47 million TVTA program.

The program was officially scrapped in September 2007 after the agency's internal Inspector General found that pilot testing of the system had been performed using data on real people without required privacy safeguards in place.
Returning to the vision set forth by DARPA "Office of Information Analysis" (OIA) and subesquent "Homeland Security" legislation passed in the wake of the 9/11 attacks, as I wrote in my original anti-TIA essay:
The explicit OIA goal is to place all recorded private and public personal transactions and histories within ongoing computerized reach of investigative authorities for more effective suppression of terrorist acts. The recently passed Homeland Security Act of 2002 (H.R. 5710, hereinafter referred to as HSA) under TITLE II—INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION, mandates exactly this sort of initiative, as it directs the government to centrally

"...access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities (emphasis mine), and to integrate such information..."

"...To integrate relevant information, analyses, and vulnerability assessments (whether such information, analyses, or assessments are provided or produced by the Department or others) in order to identify priorities for protective and support measures by the Department, other agencies of the Federal Government, State and local government agencies and authorities, the private sector, and other entities..." (pages 23 and 24)

I had to laugh when I found out about this one. Amid the recommendations of President Bush's Postal Reform Commission was one advocating the implementation of what they called "intelligent mail" as yet another "tool" for combatting terrorism. Ostensibly driven by anxieties regarding toxic "anthrax letter" incidents, the idea was to require verified sender and recipient ID for every piece of USPS mail.

Postal Service Researches 'Smarter' Mail
Security cited, but some are wary of proposed tracking system
Dan Verton, Computerworld
Aug 7, 2003 4:00 pm

WASHINGTON, D.C. -- A presidential commission charged with studying ways to make the U.S. Postal Service more efficient has recommended that the agency work with the Department of Homeland Security to develop sender identification technology for all U.S. mail.

In a final report released last week, the President's Commission on the U.S. Postal Service says sender identification technologies such as "personalized stamps" that embed digital identification information would not only improve mail tracking and delivery operations but would also enhance the security of the entire mail system.

But civil-liberties groups and some private-sector technologists fear that requiring intelligent mail for all users of the Postal Service is overreacting to the threat of terrorism.

Privacy Worries
Lee Tien, a senior staff attorney at the privacy watchdog group Electronic Frontier Foundation, says intelligent mail raises serious First Amendment issues.

"It's a free-speech and anonymity problem," Tien says.

Making intelligent mail mandatory would likely require congressional approval, Tien says, adding that "right now there is no legal requirement for anybody to scribble a return address on an envelope."

Tien also notes it's difficult to imagine how the privacy rights of ordinary citizens and whistle-blowers could be guaranteed if the use of intelligent mail were required by law...
Uh, "show two forms of photo ID" to send a letter or postcard, maybe? Your mail then gets bar-coded and logged in a database?
 Well, red herring analogies flew fast and furious, e.g., proponents citing the long-accepted existence and commercial viability of FedX, DHL, UPS, and similar express document and package delivery services. Of course, the naive sentiment ignored [1] the very high relative cost of such voluntary premium services, and [2] the fact that criminals and/or "terrorists" could easily use such services using fake IDs.

Well, given my chronic and tedious inclination for looking under the hood, I reviewed transcripts and supporting documentation of the Postal Commission hearings. Therein I found a document supporting "intelligent mail" proffered by Pitney-Bowes, one of the vendors salivating over the prospect of getting the contract to implement such a system.

Well, guess, what? The section of the Postal Commission's final report advocating implementation of "intelligent mail" was lifted nearly verbatim from the Pitney-Bowes proffer. No one found that odd (or incestuous)?

I certainly did. And I found it telling; it's a major problem with many of these ideas. Supplicants eager to garner government contracts invariably trot out their impressive, august (many times academic consultant) PhD's to soothingly and persuasively promote techno-fixes that are often simply methodologically untenable -- but which will generate a lot of profitable make-work once funded.

It gets particularly troublesome where it concerns applications such as data mining and statistical modeling -- an area in which I have just a bit of experience. Exploratory data analysis and predictive risk modeling appropriate for all manner of business applications simply cannot be effectively deployed against "terrorists" -- myriad bedazzling pitchman proposals aimed at naive, anxious legislators notwithstanding. Misidentification/error rates perfectly "acceptable" in the commercial sector (including normal clinical science) have no place in law enforcement or intel work. Beyond the "false positive" risks they pose to the innocent directly [a], such initiatives frequently constitute a grossly diversionary waste of resources, ultimately exposing society to greater risk from terrorism.
"But, If we just had all of the hay, we'd know exactly where the needles are. They're right there in the hay!"

  • [a] As I have noted elsewhere: While the relative "accuracy" (sensitivity & specificity) levels of many clinical methods that estimate disease probabilities (or any type of experimental assay with anterior empirical underpinnings using Bayesian statistical methods are tolerably well-defined (and uniformly well below 99.9%), those pertaining to a TIA program are wholly speculative at this point, and will not clarify for years (if ever). One daunting limitation will come in the form of pervasively inaccurate and/or incomplete data pouring in from the myriad public and private sources. Another will owe to the relative recency and transience of the phenomenon. As Robert Levy of the Cato Institute observes: "Never mind that Pentagon computer scientists believe that terrorists could easily avoid detection, leaving bureaucrats with about 200 million dossiers on totally innocent Americans — instant access to e-mail, web surfing, and phone records, credit-card and banking transactions, prescription-drug purchases, travel data, and court records." (see Mr. Levy's comments here) I could not agree more. While the innocent will more or less simply go on with their customary daily life transactions, our terrorist enemies will undoubtedly take evasive measures. What shall we do? Outlaw, among other things, all anonymous cash transactions? If we don't (and we cannot) the very utility of a TIA database will be fatally compromised at the outset.

    Given that no test is infallible, there are inescapable trade-offs in terms of relative false-positive/false negative levels associated with any assessment. For example, where routine workplace drug tests are concerned, labs seek to limit false positives (and the lawsuits they spawn), while they are far less troubled by false negatives (recreational drug users who slip through the screenings). With respect to terrorism, on the other hand, authorities will necessarily fret principally over false negatives -- actual terrorists who go undetected. Should you wrongly end up on a Homeland Security "No-Fly List" or be uselessly visited by a couple of FBI agents in the wake of a false positive TIA "hit", you will likely be met with bureaucratic indifference at best should you protest. At worst, you could be wrongly arrested, have your assets seized, lose your job, or otherwise have your reputation ruined.

Recall my recounting above regarding my obection to signing a carte blanche / total indemnity employment background investigation authorization for the private commercial information aggregator DataX LTD? Do you see any real potential problems with any of this? Are you comfortable with private companies rummaging through, "analyzing," and quietly trafficking -- for profit -- in your personal data (all the way to inclusive of pure verbal gossip) and sharing them with government intel agencies and law enforcement entities, quite possibly for eventual purposes having nothing whatsoever to do with "fighting terrorism"?

All while at the same time claiming the "proprietary" necessity for utter operational secrecy for themselves and their activities, not to mention also being accorded blanket retroactive and prospective immunity regarding ever having to answer to any legislative or judicial review?


The government just released -- in heavily redacted form -- a September 2007 102 page audit report on the "terrorist watch list," which has now grown to an absurd roughly one million names. I am reviewing this document. Stay tuned.

 As one contributor to The Huffington Post noted:

...There cannot possibly be one million terrorists poised to attack us. If there were our cities would be ablaze. The president - if not this president, then the next one -- needs to order the Terrorist Screening Center (the entity that maintains the list) to take everyone off this list except those for whom there is credible evidence of terrorist activities or ties. And they should be ordered to do it quickly -- within three months...

There's just no excuse for a terrorist watch list with one million names on it. And the million names dramatically understates the number of Americans actually affected by this hopelessly bloated folly. With common names like Robert Johnson on the list, exponentially more Americans are caught up in a Kafkaesque web of suspicion.

In some ways, this million-person watch list is the perfect symbol for an administration whose strategy in fighting terrorism has always revolved around making everyone a suspect -- from data mining to ID cards to see-through body scanners. It is an approach based around trying to pick a one-in-a-billion terrorist out of the population, rather than doing the only thing that has ever really worked to stop attacks: following up competently on known terrorists and known leads and working outward from there to go directly to the terrorists...
"But, but, but...If we just had all of the hay, we'd know exactly where the needles are. They're right there in the hay!"

The graph above, taken directly from the report (page 33), depicts the metastatic growth in the terrorist watch list since April 2004 (and does not reflect the recent 2008 estimated total of more than one million records). What can possibly be going on here, beyond a massively mindless CYA effort? No one wants to be the identifiable bureaucrat who let a true Bad Guy (the "true positive" terrorist) slip through. Far better to err on the side of extreme, mostly delusional caution and let the mistakenly ID'ed (the "false positives") deal with the upshot. After all, if I erroneously finger someone, his or her often protracted and frequently fruitless attempts at recourse and remedy will almost surely entail repeated interactions with others, not me personally. My prospects for catching supervisory grief will likely be limited to my having let a perp slip by.

e.g., as I noted a number of years ago during my bank risk management officer tenure:

...Interestingly, we recently underwent training regarding our responsibilities pursuant to the Treasury Department’s FinCEN (Financial Crimes Enforcement Network) SAR program (Suspicious Activity Reports). The trainer made repeated soothing references to our blanket indemnification under this system, noting approvingly that we are not even required to substantiate a “good faith effort” in filing a SAR. In other words, we could file egregiously incorrect information that could cause an innocent customer a lot of grief, and we can’t be sued.

He accepted uncritically that this was a necessary and good idea...
Necessary. Until it happens to you.


It seems as though authority simply never learns. From a recent Baltimore Sun news item:

Spying uncovered
Documents show state police monitored peace, anti-death penalty groups

By Nick Madigan | Sun reporter
8:18 PM EDT, July 17, 2008

Undercover Maryland State Police officers repeatedly spied on peace activists and anti-death penalty groups in recent years and entered the names of some in a law-enforcement database of people thought to be terrorists or drug traffickers, newly released documents show...

...The spying, detailed in logs of at least 288 hours of surveillance over a 14-month period, recalls similar infiltration by FBI agents of civil rights and anti-war groups decades ago, particularly under the administration of President Richard M. Nixon.

David Rocah, a staff attorney for the ACLU in Baltimore, said at a news conference Thursday that he found it "stupefying" that more than 30 years later, the government is still targeting people who do nothing more than express dissent.

"Everything noted in these logs is a lawful, First Amendment activity," Rocah said. "For undercover police officers to spend hundreds of hours entering information about lawful political protest activities into a criminal database is an unconscionable waste of taxpayer dollars and does nothing to make us safer from actual terrorists or drug dealers."...
A waste of taxpayer dollars. Indeed. Beyond just a "mere" abstract constitutional fastidiousness, consider the simple mathematical fact that every additional "n-th" innocent person you add to a surveillance sample/database reduces the likelihood of finding a true perpetrator by that one n-th. You've added no additional pertinent information -- toward the ostensible purpose of your investigation (ignoring, of course, its potential utility within a "mission creep" agenda). You could even easily argue that it's more than "one n-th," because you concomitantly increase the opportunity for making a "false positive" error via each incremental irrelevant addition; you're just increasing the "noise" and further obscuring the "signal," elevating the prospect of misidentification.

More on some of the minimally necessary statistical math relating to these concerns shortly. It'll only hurt for a little while, and I'll try my best to make it as painless as possible (arithmetical rather than even alegbraic where possible).


First, some requisite core definitions pertaining to diagnostic measures:

  • PREVALENCE: the proportion (typically expressed as a percentage) of items in a population having the characteristic of interest ("true positives");
  • SENSITIVITY: the ability of a diagnostic/investigative tool or method to correctly identify the true positives;
  • SPECIFICITY: the concomitant ability of that diagnostic/investigative tool or method to correctly identify (and exclude) those not having the characteristic of interest -- the "true negatives."
Assume, using some relatively round, easy illustrative numbers, a current U.S. adult population of 250,000,000. Assume further that within this population lurks a furtive cadre of 1,000 "terrorists" (our "true positives" here). Moreover, assume an anti-terror diagnostic/investigative method having at once a "sensitivity" and "specificity" both calibrated at an impressive 99.9%[b] "accuracy" and "precision." (They are not the same; accuracy refers to your ability to hit the bull's eye, while precision simply means your ability to hit the same spot on the target repeatedly, You might be quite precise, and quite precisely wrong, too.)
  • [b] Citing Finkelstein & Levin, 1990, Statistics for Lawyers: "No diagnostic test or screening device is perfect. Errors of omission and commission occur...the definition of an accuracy rate can be done in a few different ways, and these are often confused in casual or uninformed communication...It is an important fact that predictive values do depend on overall prevalence rates...As the prevalence of a condition becomes rare, PPV ["Positive Predictive Value"] drops too, sometimes surprisingly so. For example, a test with sensitivity and specificity each equal to 99% is generally considered quite precise, relative to most diagnostic procedures. Yet for a condition with a not-so-rare prevalence of one per hundred, the odds on being affected [a "true positive"] given a positive test outcome are (.99/.01 x .01/.99) = 1 , i.e., among all positive results only 50% are truly affected! For a prevalence rate of one per thousand, the PPV is only about .10. These low numbers raise serious ethical and legal questions concerning action to be taken following positive test outcomes." [3.8, pg. 103]
I would also add that "sensitivity" and "specificity" are typically operationally at odds with each other. Think about it; you could have 100% "sensitivity" by going into a town and simply arresting and imprisoning everyone. You sensitivity would 100% (you collared all of the Bad Guys), but your specificity would be zero.

Such would constitute overt tyranny. It is precisely why our founding forebears codified the 4th Amendment.

Well what do we have arithmetically in the wake of the scenario just proffered?

  • 1,000 "true positives" (terrorists);
  • 249,999,000 "true negatives" (innocent citizens, 250 million less 1,000 Bad Guys);
  • 999 "true positives" uncovered, terrorists correctly ID'd (.999 x 1,000);
  • 249,999 "false positives," innocent people wrongly tagged, i.e., 0.001 x our 249,999,000 "true negatives."
In sum, our anti-terror detection method fingers 250,998 people. One terrorist eludes detection, and 99.9% of the innocent -- 249,749,001 -- are correctly absolved. But -- we now have more than a quarter million "suspects" (250,998) warranting further investigation. Further assessment of 249,999 of these subjects will prove time-and-resource-wastingly futile -- at best (i.e., you run the risk of wrongly confirming an innocent person as a "terrorist").

This exemplifies the "low prevalence" problem in statistical investigation. Our "prevalence" in this scenario is a vanishingly miniscule 1,000/250,000,000, or 0.0004%. Random sampling here would be absurd, because [1] random sampling assumes random distribution of the positives within a population, and [2] the microscopic prevalence of true positives renders manageable sampling problematic.

  • NOTE: you can easily dump all of these estimates into an Excel spreadsheet and play with the population, prevalence, sensitivity, and specificity assumptions. The one I constructed back during the 2002 "Total Information Awareness" dust-up can be downloaded by clicking here.
But, you say, what if it's not "sampling," but ongoing automated population surveillance, e.g., "SIGINT" ("Signals Intelligence" -- recall my outset Bourne movie allusion: "CIA Substation, London UK "...I have a hit on Echelon, keyword ‘Brackbriar.’ Repeat ‘Blackbriar.’..."?).

Fine. So, say you get 250,998 "hits" per, say, day (or hour)? And that just assumes monitoring U.S. adult citizens; what about the global surveillance of perhaps hundreds of millions more (e.g., as in FISA implications)? How will you ever handle the eventual necessary human ("HUMINT") assessment/decision logistics regarding such a volume of voluminous false positives?

Well, if the above-cited federal "Terrorist Watch List" is any indication, you simply won't -- i.e., you just perhaps let them pile up in some secret database, accessible by who knows, and for what mission-creep purposes down the line?


As I noted in my 1998 grad thesis:

The choice of “cut-off” levels that classify results as either “positive or “negative” on the basis of their quantification above or below administratively pre-determined concentration limits is a principal factor in relative rates of false positives and negatives. Low cut-offs risk excessive false positives, whereas high cut-offs inevitably lead to a higher false negative rate. The choices must be made with consideration for the consequences of being wrong either way, balanced against the benefits of being right. Assay “sensitivity” refers to the probability that a true positive can be identified; “specificity” denotes the probability that a true negative will be so determined. These two analytical attributes are mutually inverse, and simultaneous optimization of drug test sensitivity and specificity (or, equivalently, at once minimizing the possibility of false positives and false negatives) is not economically feasible in inexpensive mass production mode. Something has to give. The same principle applies in criminal jurisprudence, wherein “sensitivity” (the allegations) must be supported beyond a reasonable doubt by “specificity,” (the particular, logically undeniable proofs). Allegations (screens) are cheap; proof (confirmation) is expensive (and made prohibitively more so in the absence of probable cause).
"[A]dministratively pre-determined" - At the time I was referring to a priori cut-off limits imposed on bioanalyte screens in drug testing labs. In those environs, lab management worries principally about angry, expensively litigious false positives. With respect to terrorism, on the other hand, the nightmare spectre is the reverse -- the "false negative," an actual terrorist who slips through undetected. The operational upshot? In the former case, you ratchet the screening cut-off levels so high that you only collar "probable cause" cases anyway, with the majority of low level recreational users -- false negatives -- slipping past the screens.

In the latter case you end up with absurdly bloated, counterproductive Terrorist Watch Lists.

  • Question: have you ever gone through the detectors at airport security without incident, only to subsequently discover in angst that you'd forgotten in your haste to remove your belt, with its heavy metal buckle, or your cell phone, or the large lump of coin change or keys in your pocket (as I have a number of times)?

    That is an example of "administratively pre-determined (high) cut-off levels." TSA will never admit it, but they don't want the mandatory secondary wanding and pat-down search hassle caused by excessive false positives. Solution: tweak the scanners' detection floor up higher (in the audio recording studio we call such damping circuitry a "noise gate").

None of the foregoing is to imply that the task of ferreting out terrorists is problematic or otherwise insurmountable in the face of extremely low prevalence. It is simply offered to illuminate the indisputable point that mindlessly adding more data "noise" to a system inescapably detracts from our ability to get at the true positive signals. You can't let a database and its associated mining algorithms (heuristics, really) do your thinking for you.

  • "And when we try to define 'evidence' … we find it very difficult."
    —R.G. Collingwood, The Idea of History
I'll take a shot at that: "Evidence" is that which makes a true conclusion more likely.



xoites said...

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Read "blog Here" up top to get in. It is easy and open to all.

BobbyG said...

Thanks, I'll check it out ASAP. This post is gonna be quite lengthy and detailed. Stay tuned. Pay it forward.

Chris W. Martinez said...

Holy moly, you've done your homework. Lots of great info here. I'm still picking away at it when I have the time.

Anonymous said...

That is some fucking post!!!

Thanks for the transcript on Noonan and Murphy!!!

Anonymous said...
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