Judge Posner’s Troubling Call for Massive Surveillance
posted by Daniel Solove
Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens — their email, documents, phone conversations, nearly everything they say or do — regardless of whether they are suspected of any wrongdoing or not. Posner’s argument is quite startling and troublesome. Posner writes:
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.
So, taking Posner’s argument to the extreme, there’s no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on — so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people’s speech and freedom? Posner ignores these things.
Posner goes on to write:
The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
According to Posner, the FISA is too restrictive because it doesn’t allow surveillance on innocent U.S. citizens. However, the FISA protects U.S. persons from broad surveillance to prevent the government from systematically spying on citizens. Posner would sweep aside these protections, many of which are in place because of the Fourth Amendment.
Posner says:
Many of the relevant bits [of data for learning about terrorist activities] may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
And how can we limit the government to just using it for “national security”? What constitutes “national security” versus ordinary crime? As I wrote in an article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004): “What precisely is ‘national security’? Is a mass murderer on the losse a national security issue? Some have even argued that drug trafficking is a natiional security issue.” The line between national security and domestic criminal activity is a fuzzy one. Moreover, many government abuses have been done under the cover of so-called “national security.”
Posner continues:
The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.
If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.
For more thoughts on Posner’s op-ed, see:
Marty Lederman, Judge Posner and “Ad Hoc Initiatives” (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)
Kieren Healy, Posner Forgets Himself (Dec. 21, 2005)
December 21, 2005 at 11:12 am
Posted in: Privacy (National Security)
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Responses (12)
Jim Harper - December 21, 2005 at 11:51 am
. . . and why is a federal judge weighing in on current hot political topics? I think the Becker-Posner ‘blog is borderline. An Op-Ed on a blockbuster issue like this? Over the line.
Political Animal - December 21, 2005 at 12:03 pm
Liberty and Safety
LIBERTY AND SAFETY….Richard Posner’s op-ed in the Washington Post has been pretty well picked over already, but this passage really floored me:The information that enables the detection of an impending attack may be scattered around the world in tiny…
Gore/Obama '08 - December 21, 2005 at 12:14 pm
Read Posner’s “Catastrophe.” He defends BushCo, because we face existential threats. He is right that we fact existential threats, but defending BushCo makes severe attacks / threats more likely to come to pass.
(reposted from WashMo)
This is the worst of all possible worlds.
By spying on fur protests, vegans, lesbians, Quakers, and political opponents, BushCo totally belittles the need for a new approach to new threats. By saying they couldn’t follow the law *because it involves paperwork* (see AmericaBlog) and they couldn’t try to modify the law (also at America), they’ve made it much more unlikely that Posner’s or Robert Wright’s proposals will ever get a real hearing.
BushCo are both incompetent (Lawrence Wilkerson’s comments about their not preparing for biological attacks; ignoring “bin Laden determined to strike,” Katrina; etc.) and corrupt (DeLay, Frist, trying to slip ANWAR drilling into the Defense appropriations bill, etc.). BushCO have done everything possible to make us less safe – breaking the law re: spying is just the latest, and probably not as serious as pissing off the rest of the world. To avoid terrorism and existential risks, we need allies.
If you want a safer America, you have to throw these criminals out before they destroy everything bin Laden could never touch.
Posner *must* condemn these criminals, and use that condemnation as a call for reevaluating our laws in the face of existential risks.
John Armstrong - December 21, 2005 at 12:47 pm
This reminds me of a thread on VC (sorry, can’t seem to find the link) about computer searches. If police without a warrant ask a suspect to search his computer and he consents, but later retracts that consent after they’ve made a copy of the hard drive, can they search the copy they’ve made.
This all goes back to my standard rant about the need to come up with a way of treating information properly, rather than with a jury-rigged analogy to physical property. A more clear-cut extension of Posner’s position, though, would go as follows: if I were to download (without paying) a large body of copyrighted music onto my computer that would be perfectly fine as long as I didn’t listen to it. Then it falls on the RIAA to prove that I have listened to it. In particular, all the decisions in suits the RIAA has filed against individual downloaders have to be overturned, since they only showed that the music was downloaded.
What constitutes “posession” of information? If having an mp3 file on my hard drive without listening to it constitutes an illegal posession, then so does an unanalyzed government wiretap.
Political Animal - December 21, 2005 at 2:09 pm
Liberty and Safety
LIBERTY AND SAFETY….Richard Posner’s op-ed in the Washington Post has been pretty well picked over already, but this passage really floored me:The information that enables the detection of an impending attack may be scattered around the world in tiny…
Political Animal - December 21, 2005 at 2:17 pm
Liberty and Safety
LIBERTY AND SAFETY….Richard Posner’s op-ed in the Washington Post has been pretty well picked over already, but this passage really floored me:The information that enables the detection of an impending attack may be scattered around the world in tiny…
gvibes - December 21, 2005 at 2:37 pm
Mr. Armstrong – The xxAA is not suing anyone for possessing or listening to songs. They are suing people for copying. Specifically, for copying a copyrighted work from somewhere online to the defendant’s computer. They also sue people for distributing those copyrighted works.
Outside The Beltway - December 21, 2005 at 3:04 pm
Our Domestic Intelligence Crisis
Judge Richard Posner of the 7th Circuit Court of Appeals weighs in on the NSA spy flap:
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against …
Chandan Kudige - December 21, 2005 at 6:07 pm
It is a commonly used excuse that since the “computer” is shifting through all the data there is no concern for privacy.
The real concern is the ease with which someone who is a “sentient” being, can find information from this database whenever they want. Its not the action of shifting through the data as much as the accessibility to that private data that we should be worried about.
Almost all “Patriot Act” kind of arguments can be defended by saying “We will collect information, but we promise we wont use it for anything other than catching (who we think are) terrorists.
But, like President Bush answered when a reporter asked him what the checks on the executive branch
was “I took an oath when I started office. You have to trust me”.
A Stitch in Haste - December 21, 2005 at 8:51 pm
On Posner’s “Technology Exception” to the Fourth Amendment
Richard Posner has a piece in today’s Washington Post that is likely to befuddle many of his acolytes:
UnMask911 - December 21, 2005 at 10:05 pm
“The terrorist menace, far from receding, grows every day.” Yes, this is a common theme, just check out McClellan’s press briefing today, but Posner’s stated reason is like most others emanating from the Mighty Wurlitzer of MSM and Repulican shills.
If Americans spent more time researching the web for what Palestinians and Iraqis and Afghanis are experiencing at the hands of the US/Israel military behemoth and their native proxies, and what they have to say about that experience, it quickly becomes clear why “the terrorist menace” grows every day. It grows on two fronts. The state terrorism perpetrated by the US/Israel exarcebates the second front, the desire of those on the receiving end to retaliate. Until Americans plug A into B as a causal relationship, that menace to “the Homeland” will, indeed, leapfrog forward and provide raisons d’etre for the growing surveillance state. The terrorist threat immediately, appreciably diminishes when all Americans get beyond “we know what’s best for the world”. “Manifest Destiny” in all its iterations is Bullshit. As for “what about the Islamo-Fascist-Extremists”? What about the Christian Zionist Extremists in the White House?
John Armstrong - December 22, 2005 at 11:41 am
gvibes: I know they’re not suing for listening to songs. That’s exactly my point. Posner’s argument is that as long as no human observes information, making electronic copies and archiving them is innocuous.
Look, I’ll turn the conditional around if it helps: if the government can record my phone calls and just needs a warrant to listen to them, then I can download all the music I want and just need to pay to listen to it. Of course it’s ridiculous — I’m trying to show how Posner’s argument comes from a completely screwey understanding of what information is.
What is posession of information? I can’t answer that definitively, but so far neither can anyone else. What I can say is that either having a copy on physical media one owns — be it a song on my hard drive or my phone call on the government’s — is posession before a human looks at/listens to it or it isn’t. You can’t have it one way for music and another for signals intelligence.
Oh, and in case you’ll argue that the copyright issue is a distinction, I see no difference between tapping a phone and making a bootleg recording of a live concert. How can one say that the Rolling Stones playing on stage is immediately copyrighted while me semicoherently ranting into a phone isn’t?
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