Immediately after 9/11, politicians and pundits slammed the Bush administration for failing to “connect the dots” foreshadowing the attack. What a difference a little amnesia makes. For two years now, left- and right-wing advocates have shot down nearly every proposal to use intelligence more effectively—to connect the dots—as an assault on “privacy.” Though their facts are often wrong and their arguments specious, they have come to dominate the national security debate virtually without challenge. The consequence has been devastating: just when the country should be unleashing its technological ingenuity to defend against future attacks, scientists stand irresolute, cowed into inaction.
“No one in the research and development community is putting together tools to make us safer,” says Lee Zeichner of Zeichner Risk Analytics, a risk consultancy firm, “because they’re afraid” of getting caught up in a privacy scandal. The chilling effect has been even stronger in government. “Many perfectly legal things that could be done with data aren’t being done, because people don’t want to lose their jobs,” says a computer security entrepreneur who, like many interviewed for this article, was too fearful of the advocates to let his name appear.
The privacy lobby ranges from leftish groups focused on electronic privacy, such as Silicon Valley’s Electronic Frontier Foundation and Washington, D.C.’s Electronic Privacy Information Center, to traditional right-wing libertarian organizations, such as Americans for Tax Reform, the Free Congress Foundation, and the Eagle Forum. Both sides see government as one step from tyranny. They equate privacy with absolute secrecy, and absolute secrecy with liberty, as technology analyst K. A. Taipale has observed. Quixotically, they seek such secrecy for electronic data, even though it is probably the least private thing about us, routinely traded to consumer marketers.
The privocrats only grudgingly acknowledge that terrorism exists, and they never concede that a gain in the public good may justify a concession in “privacy.” Their operating principle can only be formulated as: no use of computer data or technology anywhere at any time for national defense, if there’s the slightest possibility that a rogue use of that technology will offend someone’s sense of privacy. Consequently, they are pushing intelligence agencies back to a pre-9/11 mentality, when the mere potential for a privacy or civil liberties controversy trumped security concerns.
The right- and left-wing libertarians’ triumph began on November 14, 2002, with a New York Times column entitled YOU ARE A SUSPECT, by William Safire. Safire announced that the Defense Department was about to create “computer dossiers on 300 million Americans” that would contain “every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend. . . . ”
This “Orwellian scenario,” explained Safire, represented the “20-year dream” of former Reagan national security advisor John Poindexter. Poindexter’s conviction for misleading Congress about his role in the Iran-Contra scandal was a mere prelude, Safire said, to his present project to “snoop on every public and private act of every American.” That project, called Total Information Awareness (TIA) and run out of the Pentagon’s prestigious Defense Advanced Research Projects Agency (DARPA), was mere “weeks” from completion. The Senate must act now, Safire warned, to shut it down and stop Poindexter’s “sweeping theft of privacy rights.”
Bingo. Within hours of publication, the column set off a frenzy of editorializing about the Bush administration’s imminent police state. Within two months, the Senate had voted to ban deployment of TIA, though it provisionally allowed research to continue. By August, Poindexter had resigned; in September, Congress shut down DARPA’s research effort entirely.
Not bad for a tissue of fabrication. Safire’s depiction of TIA research as the megalomaniacal agenda of one controversial man completely distorted the project, which would have been run by intelligence analysts, not Poindexter. Many of its components predated Poindexter’s arrival at DARPA. Safire’s invocation of 300 million “dossiers” was equally fanciful. TIA’s realization was years, not “weeks,” away. But most egregiously, by not mentioning one word about terrorism, Safire omitted entirely TIA’s purpose, presenting it simply as a gratuitous effort to spy on Americans.
The goal of TIA was this: to prevent another attack on American soil by uncovering the electronic footprints terrorists leave as they plan and rehearse their assaults. Before they strike, terrorists must enter the country, receive funds, case their targets, buy supplies, get training, and send phone and e-mail messages. As the event nears, the pace of activity will quicken: cell members call to synchronize their schedules (the pre-attack “chatter” that surveillance agencies nearly always pick up); they make last-minute purchases; they confirm that the coast is clear. Many of those activities will leave a trail in electronic databases, which will register a spike in transactions right before an assault. TIA researchers hoped that cutting-edge computer analysis could find that trail in government intelligence files, whose exponential growth overwhelms the ability of analysts to understand what they contain. TIA developers would also test whether enriching that intelligence with certain commercial transaction records would increase the chances of detecting terror planning.
TIA would have been the most advanced application yet of a young technology called “data mining,” which attempts to make sense of the explosion of data in government, scientific, and commercial databases. Through complex algorithms, the technique can extract patterns or anomalies in data collections that a human analyst could not possibly discern. For example, Usama Fayyad, a pioneer in the field, used the method to solve a problem that had bedeviled astronomers for decades. He coaxed computers to sift through 30 years’ worth of sky images—encompassing 2 billion sky objects—and classify them as stars or galaxies on the basis of 40 variables, such as shape, size, and brightness. Since then, public health authorities have mined medical data to spot the outbreak of infectious disease (and are preparing to do the same for bioterror attacks), banks have detected money laundering, credit-card companies have found fraudulent credit-card purchases with the technique, and consumer-products firms target their advertising by analyzing what type of customer buys their products.
Fayyad, who founded Microsoft’s Data Mining Exploration Group, says that data mining is the key for navigating the new digital universe. What still needs to be done to hone the technique? I asked. “Everything,” he replied. “It’s like at the time of Columbus. There’s a great big ocean in front of us, and no one knows what’s on the other side. Right now, we don’t know what data is, or what it means. A few companies have waded into the ocean, but they really don’t know what the potential is.”
So hysterical were the attacks on TIA that followed Safire’s column that it was often hard to grasp the exact basis of the objections. This much was clear: data mining was a dangerous, unconstitutional technology, and the Bush administration had to be stopped from using it for any national security or law enforcement purpose. Senators Russ Feingold, Jon Corzine, and Ron Wyden introduced wildly technophobic bills banning data mining for national defense.
Without question, TIA represented a radical leap ahead in both data-mining technology and intelligence analysis, not surprising for a visionary group like DARPA, which created the Internet. The project would comb data from highly disparate activities, people, and associations, to predict exceedingly rare events. Had it used commercial data, it would have given intelligence agencies instantaneous access to a volume of information about the public that they had never before had. As with any public or private power, TIA’s capabilities could have been abused—which is why DARPA planned to build safeguards throughout the system. But it differed from existing law enforcement and intelligence techniques only in degree, not kind. Though the scale of data it would have made immediately available to government was unprecedented, the type of evidence was identical to what government had had legal access to for decades.
The swirl of rhetoric against TIA acknowledged none of these facts. What it appeared to assert—and it takes a real effort to discern coherent themes—is this:
•Don’t touch commercial data!
In addition to allowing the government to mine its own intelligence databases, TIA also proposed to see if rapid government access to commercial data banks would improve the chance of spotting terror planning. Consumer data has become such a hot commodity that outfits known as data aggregators buy entire data banks from companies like MasterCard and Marriott, mix them with publicly available data from phone books or title companies, say, and then sell access to their mega-database to marketers seeking a comprehensive view of the American consumer. Anyone with enough cash can find out what someone’s mortgage payments are, what restaurants he frequents, what debts he owes and where he banks, whether he subscribes to American Rifleman or Martha Stewart Living, and whether he’s more likely to visit Graceland or Greenland, among a thousand other features of his life.
Why DARPA’s interest in commercial repositories? Because that is where the terror tracks are. Even if members of sleeper cells are not in government intelligence databases, they are almost certainly in commercial databases. Acxiom, for example, the country’s largest data aggregator, has 20 billion customer records covering 96 percent of U.S. households. After 9/11, it discovered 11 of the 19 hijackers in its databases, Fortune magazine reports. The remaining eight were undoubtedly in other commercial banks: data aggregator Seisint, for example, found five of the terrorists in its repository.
Had a system been in place in 2001 for rapidly accessing commercial and government data, the FBI’s intelligence investigators could have located every single one of the 9/11 team once it learned in August 2001 that al-Qaida operatives Khalid al-Midhar and Nawaq al-Hazmi, two of the 9/11 suicide pilots, were in the country. By using a process known as link analysis (simpler than data mining), investigators would have come up with the following picture: al-Midhar’s and al-Hazmi’s San Diego addresses were listed in the phone book under their own names, and they had shared those addresses with Mohamed Atta and Marwan al-Shehi (who flew United 175 into the South Tower of the World Trade Center). A fifth hijacker, Majed Moqed, shared a frequent-flier number with al-Midhar. Five other hijackers used the same phone number Atta had used to book his flight reservations to book theirs. The rest of the hijackers (who crashed in Pennsylvania) could have been tracked down from addresses and phones shared with hijacker Ahmed Alghamdi, a visa violator—had the INS bothered to locate him before the flight by running his name on its overstayer watch list.
Privacy advocates say that giving the government access to data held by commercial third parties violates constitutional privacy rights. They are wrong. The Supreme Court has repeatedly said that the government may obtain business and other records held by third parties without warrant or probable cause, because those records are no longer private. Law enforcement officials may subpoena records, or request that they be provided voluntarily, or may simply purchase data repositories on the market like any other player in the digital economy.
Nevertheless, despite the decidedly un-private state of commercial data, DARPA scientists were building privacy protections into TIA. They were testing whether the identity of individuals picked out by a terror search of a database could be concealed until sufficient evidence justified their revelation. Filters would automatically remove information irrelevant to the investigation. Moreover, only authorized users could access the commercial data, with their searches recorded for subsequent audits. Anyone abusing the system to look up the credit history of his ex’s new husband, for example, would be punished. Safire’s incendiary column said nothing about any of this, of course.
•No pattern analysis allowed.
Going beyond link analysis from known suspects, TIA inventors hoped to spot suspicious patterns in data even before they could identify any particular suspect. For example, on 9/11, the airline-passenger profiling system flagged as suspicious nine of the 19 hijackers as they attempted to board, including all five terrorists holding seats on American Airlines 77, which flew into the Pentagon; three of the hijackers on American Flight 11; and one hijacker on United Flight 93, which crashed in Pennsylvania. Security procedures at the time prohibited airport personnel from interviewing flagged passengers or hand-searching their carry-on luggage—a mad capitulation to the civil liberties and Arab lobbies.
Instead, a machine would have scanned the checked luggage of the nine flagged hijackers for explosives, and an airport agent would have confirmed that they actually boarded with their bags. But had a pattern-recognition system been in place—and assuming that five flagged passengers on one flight was an abnormal pattern—authorities might have investigated further and noticed that the five flagged passengers were all Middle Eastern men. Link analysis would then have shown extensive connections among them. Had security agents overcome their fear of a racial profiling charge, they might have interviewed the five and found troubling inconsistencies in their stories, meriting further inquiries.
The “privacy community,” as they like to call themselves, will have none of this. They claim that looking for patterns of suspicious behavior before having any particular suspect in mind is unconstitutional. In conventional police work, they say, the government starts from a known suspect or actual crime. But in data mining, the government may begin from a suspicious pattern spotted in data—the purchase of large amounts of bomb-making chemicals, say, together with a visa overstay, extended tours in Afghanistan in 1999 and 2000, and the rental of a Ryder truck—before having any suspects or actual crimes in view. This latter technique, the ACLU and other civil libertarians say, makes government investigations potentially limitless. “Pattern-matching investigates everyone,” complains Priscilla Regan, a government professor at George Mason University, “and most people who are investigated are innocent.”
But pattern analysis, as distinct from “particularized suspicion,” has always been integral to crime fighting. Experienced FBI agents and police officers often try to predict future events—the site of the next bank robbery, say—by analyzing previous crimes and figuring out the crooks’ modus operandi. New York engineered the greatest crime drop in its history by using its Compstat computer system to spot crime patterns. What a cop on the beat may observe as suspicious—furtively walking back and forth in front of a jewelry store—is based on generalizations from previous heists. Whether a cop observing a suspicious pattern of behavior can accost the suspect or search him depends on the strength of the evidence suggesting criminal intent. But the situation is no different when the behavior in question is “observed” in a database: whether to investigate the individual further rests on the usual standard-of-proof question that all law enforcement officers face, as K. A. Taipale has argued.
Opponents of data mining demand that evidence in databases be granted a degree of anonymity and inaccessibility far beyond other types of evidence, but they offer no justifications for why an FBI agent should treat a sales record in a database differently from a sales receipt in a merchant’s drawer or from his own observation of the sales transaction. By their reasoning, in fact, police departments should not send extra officers to high-crime neighborhoods, for that would be to deploy them on the basis of patterns and predictions, not “individualized suspicion,” and most of the people they would observe would be innocent. Finally, having your data instantaneously scanned by a computer is not tantamount to being “surveilled.” Assuming that the entries were not flagged for further human investigation, no one has “investigated” you. The computer has no idea what those zeros and ones represent. In fact, computer searching of data protects privacy more than a Sam Spade–style hand search through title deeds, say, or hotel registries, which does in fact sentiently peruse records of the innocent as well as the guilty.
•It will work too well—or not at all!
It’s okay for Home Depot to buy my digitized credit-card receipts, says the privacy “community,” to see whether I would be a soft touch for a riding mower. But if government agents want to see who has purchased explosive-level quantities of fertilizer, they should go store to store, checking credit-card receipts. Data-mining opponents would deny terror investigators a technology in common use in the commercial sector, simply because they think government should be kept inefficient to limit its power, a Luddite’s approach to public policy. Remember: data mining would only speed government access to records to which it is already legally entitled. When a technology offers possibly huge public benefits, the rational answer to the fear of its abuse is to use technology to build in safeguards.
Consistency being no constraint, privacy advocates were simultaneously advancing the equal and opposite argument that TIA was just a pipe dream, unlikely to accomplish its stated goals. But that is just what the research was trying to find out; to cut off an experiment likely to yield at the very least critical computing breakthroughs is benighted.
Throughout 2003, the drum roll against TIA continued in congressional hearings and press conferences. Then, in August 2003, an unsettling DARPA anti-terror notion came to light—a projected futures market in predicting destabilizing geopolitical events, such as wars, assassinations, and terror attacks. Since markets are highly efficient at aggregating information, went the idea—still just blue-sky theorizing—a bad-news predictions market would give intelligence analysts access to knowledge about the world that they might otherwise miss. After all, political elections markets—really little more than highly formal betting operations—have proven far better at predicting vote outcomes than pundits. The goal of DARPA’s FutureMap was to avert human destruction, but understandably it was almost universally condemned as incentivizing death, should terrorists infiltrate the market and use it as an insurance policy. Poindexter did not lead the project, but within 48 hours, he was forced to resign. Weeks later, Congress shut down his entire DARPA office and, with it, TIA research. Ecstatic privocrats danced on TIA’s grave.
Poindexter’s resignation reveals how little the country’s priorities have changed since the al-Qaida attacks: he is the only government employee to be fired for national security reasons since 9/11. The message could not be clearer: no one need fear for his job for failing to protect the nation. But embark on a lifesaving endeavor that may, years in the future, if abused, push the envelope of privacy protections, and you’re gone, as Stewart Baker, former general counsel to the National Security Agency, recently testified. The FBI bureaucrats who decided in May 2001 that investigating al-Qaida affiliates in flight schools would constitute racial profiling still draw their government checks; the Justice Department functionaries who kept FBI agents in New York from hunting for ringleaders al-Midhar and al-Hazmi still enjoy their supervisory perks; the FBI paper pushers who refused on bogus legal grounds to let agents in Minnesota search Zacarias Moussaoui’s possessions still opine on the law—and, of course, CIA director George Tenet and FBI director Robert Mueller, who presided over the worst intelligence failure in American history, are still in place.
Watching Poindexter’s and TIA’s demolition, the computing world rationally concluded: let’s not go there. “People and companies won’t enter into technology research [involving national security computing] because of the privacy debates,” says a former FBI agent and chief privacy officer for a major electronic information firm. Many scientists shake their heads at the overreaction. Usama Fayyad says: “If I were worrying about defense, data mining is such an obvious target for research. It’s an area where we must maintain an advantage.”
The national security carnage was just beginning. In the wake of Safire’s success in mortally wounding TIA, his New York Times colleague Maureen Dowd decided to join the privacy crusade, objecting, with characteristically sneering know-nothingism, to another DARPA national defense project: Human Identity at a Distance. The project’s goal was a video device that could recognize human beings at 500 feet from their gait and other biometric features. Intended users: U.S. embassies and other critical government installations. Let’s say someone had circled the U.S. embassy in Morocco three days in a row, particularly examining the gate. If a different guard were on duty each time, no one would recognize the repeat visits. But the camera would connect the dots and would alert authorities. Moreover, if the possible terrorist had been recorded previously in the Sudan, say, the device might also identify him from his walk or other features.
In May 2003, Dowd derided the project as something out of Monty Python. She portrayed it as the personal project of John Poindexter, with Poindexter appearing this time as a leering
Peeping Tom. “I don’t want John Poindexter tracking my body part contours,” she sniffed, with true baby-boomer self-obsession, incapable of imagining any public issues outside herself. But even if such a camera did photograph her, it would record only what any passerby could see. There would be no privacy violation whatsoever.
Nevertheless, Human Identity at a Distance is no more, terminated by DARPA, still reeling from the public-relations disaster of TIA.
The following month, Safire himself turned his guns on yet another DARPA project—with equally lethal success. His column, DEAR DARPA DIARY, was arguably even more fanciful than YOU ARE A SUSPECT. It targeted LifeLog, a highly ambitious project to teach computers to record, analyze, and learn from a user’s experience. A camera hooked up to a small computer would record the user’s activities; the user could also input documents or dictate memos. This cyber-diary would then analyze these materials for subsequent recall.
The ultimate user LifeLog scientists envisioned was a battlefield commander. Let’s say a special-forces unit, having fought Taliban holdouts in the caves of Afghanistan, has returned to base to be debriefed so that the next platoon will have a complete sense of what happened and what awaits them in the area. Worn by soldiers, LifeLog would supplement their fallible memory and perceptions with a well-organized record of the battle.
Out of this reasonable, if speculative, idea—not so dissimilar from the use of artificial intelligence in medical diagnostics—Safire concocted a completely fictional “national memory bank,” run by—you guessed it—Big Brother Poindexter. According to Safire, civilian LifeLog “user-spies,” equipped with hidden wires, would secretly “snoop” on . . . everyone. The contents of every LifeLog would then be dumped into a “national memory bank,” which would have “undeniable recall of everything you would just as soon forget.” Poindexter would be squirreled away in the “basement of the Pentagon,” sifting through the bank of secrets.
DARPA had no stomach for another privacy controversy and killed the project. Battlefield leaders will just have to make do. But as a DARPA scientist observes: “Just because we can’t pursue this technology doesn’t mean the Chinese will stop. Right now, we have technological superiority when we go into battle. We know what’s going on better than our enemies because of smart weapons and sensors. In ten or 20 years, though, we could lose that edge.”
The privacy vigilantes now have in their sights an airline-passenger screening system and an interstate network to share law enforcement and intelligence information. Both projects could go down any minute. As to whether that would be in the national interest, readers should ask themselves if they would be happy to fly seated next to Mohamed Atta. If yes, they needn’t worry about the cancellation of the Computer Assisted Passenger Prescreening System (CAPPS II). And if they don’t care whether police can track down a child abductor within minutes of his crime, then they shouldn’t care about the crippling of the Multistate Anti-Terrorism Information Exchange, either.
But those who want terrorists kept off planes will find the privacy crusade against CAPPS II worrisome indeed. Responding to a November 2001 congressional order to develop such a system, the Transportation Security Administration (TSA) came up with a two-step process: verifying the passenger’s identity and assessing his risk. When making reservations, an airline would collect fliers’ names, addresses, birth dates, and phone numbers, and send them to the TSA for forwarding to a commercial data aggregator. Checking the information against its own databases, the data aggregator would send identity authentication scores back to the TSA: high if the passenger’s information can be verified, low if no commercial database has a match. Such a system is not immune from the threat of identity theft, of course, but additional safeguards can be added later.
Next, the TSA would check the passenger’s proffered identity against government intelligence databases. That information, combined with the identity authentication scores, would divide passengers into acceptable risks (green), unknown risks (yellow), and unacceptable ones (red). At the airport, green and yellow passengers would receive boarding passes, but the yellows would get rigorously screened. The reds would have to wait for law enforcement agents to determine if they could proceed.
The crusade against CAPPS II is a textbook case of privacy charlatanism. The formula: 1. identify hated program with TIA; 2. mischaracterize its details; 3. charge it with specious privacy and other rights abuses; and 4. provide no reasonable alternatives.
Nowadays, if you can get the words “Total Information Awareness” and the unwanted program’s name in the same sentence, you’re halfway to demolishing it. The Electronic Privacy Information Center (EPIC) hits all the right notes in its description of CAPPS II: “CAPPS II shares many of the same elements of the Defense Department’s ‘Total Information Awareness’ program, which profiles innocent people. . . . [It relies] on experimental data-mining algorithms to find patterns in the government and commercial databases available on individuals.”
Nothing in that statement is true. CAPPS II has nothing to do with data mining; it is a two-step database query system. It does not use “experimental data-mining algorithms to find patterns” in databases; it merely checks to see if any given subject is present in the applicable database.
The falsehoods pile up higher still. In March 2003, the Electronic Privacy Information Center’s Cédric Laurant told the European Parliament why it should refuse to cooperate with CAPPS II. The system would result in “widespread spying,” he said, by giving TSA “access to financial and transactional data, such as credit reports and records of purchases, confidential business records, [etc.].” Not so: TSA would see none of the commercial data that the data aggregators would use to verify a passenger’s identity; all the data would stay in the aggregator’s database.
The ACLU claims that CAPPS II would likely discriminate against minorities by using credit scores to rank a flier’s risk; such scores, according to the ACLU, have a “well-documented bias against minorities.” But even the ACLU admits that TSA has denied any intention of using credit scores to assess risk. Still, the ACLU contends, nothing the government has said so far actually “bars” it from doing so.
The privacy industry has been rehearsing for its post-9/11 triumph for a long time. One 1999 battle with the Clinton administration is key.
The government proposed to monitor break-ins to government computer systems, well knowing that foreign intelligence services and al-Qaida were (and still are) developing tools to attack the country’s cyber-infrastructure. Every day, hackers hit crucial transportation, energy, and defense networks thousands of times. A big coordinated attack on national computer systems could be as crippling as an atom bomb.
The Clinton cyber-security team hypothesized that cyber-terrorists would practice their skills in small, discrete break-ins that would not draw much attention, before staging a full-scale strategic assault. Although individual agencies monitored their own computer break-ins, no one tracked hacking across all government systems to look for emerging patterns. Doing so would make it easier to find the criminals and to take the measure of any systemic threats.
Privacy advocates and anti-Clinton House Republicans portrayed this reasonable proposal as a stratagem to spy on law-abiding Internet users. Their rhetorical flourishes foreshadowed the TIA mania. “Mr. President, stay out of my in-box,” roared House Majority leader Dick Armey. Armey predicted an “Orwellian” scenario in which government bureaucrats could “read our personal e-mail.” EPIC’s Marc Rotenberg testified to the Senate Judiciary Committee that the proposed Federal Intrusion Detection Network (FIDNet) constituted an unconstitutional search under the Fourth Amendment that gave the government “extensive surveillance authority.” Jim Dempsey of the Center for Democracy and Technology called FIDNet a “Trojan Horse for civil liberties incursions.” The ACLU’s Barry Steinhardt said it was “quite clear” that federal law enforcement agencies “will abuse whatever power is given to them” to monitor government websites. Newspapers fulminated about the “daddy of all government monitoring schemes.”
All balderdash, of course. Though the advocates claimed that the government would keep logs of private citizens’ browsing of government web pages, in fact only unauthorized break-ins (which are federal felonies) would be recorded. Though advocates said that the government would monitor individual e-mails, in fact only patterns of hacking would be monitored. The advocates claimed that by bringing intrusion information from a range of agencies together in one place, the government was turning into Big Brother. Untrue: the government may quite legitimately study patterns of criminal activity across its domain. And finally, the privocrats charged that the Clinton administration planned to force private-sector computers into this network. False again: private participation would be voluntary.
Typically, the privacy fanatics ignored competing interests, even competing privacy interests, such as that of protecting the IRS or Social Security databases from hackers. And if terrorists bring down the electrical grid right before setting off a bomb, attack victims will be left only with the privacy of the grave. But under pressure, the Clinton administration withdrew the FIDNet plan. The government still has no central capacity for monitoring its computer systems, even though intrusion-detection tools are standard in the private sector. Says a former cyber-security official: “We’ve been hit badly over the last couple of years.” What those hits could add up to in the future, no one can say.
This is a hard rhetorical technique to counter. One must defend not only what a program is, but also what it isn’t. If program developers say, “We’re not going to perform pattern analysis,” critics respond, “Oh, but you could if you changed the entire structure of the program.” But infinite changes could be wrought in any program. At some point, a citizen must take his government at its word. While mistrust of government is a healthy instinct, the assumption that everything a public official says is a lie leads to complete paralysis.
Every proposed national security technology is a Rorschach test of the viewer’s special paranoia. If the ACLU sees racial discrimination in CAPPS II, the libertarian Right sees the hand of left-wing busybodies. Grover Norquist, whose Americans for Tax Reform has been a regular signatory of anti–CAPPS II propaganda, wants to know “who put together the terrorist watch list.” “Does it contain gun ownership or evangelical Christians?” he asked me rhetorically. Steve Lilienthal, director of the Free Congress Foundation’s Center for Privacy and Technology Policy, speculates that the anti-terror intelligence databases may target the “committed property rights advocate.” I asked TSA spokesman Mark Hatfield whether the agency would look at gun ownership to evaluate risk. “That is the most far-out suggestion I have heard,” he responded incredulously. “It is totally beyond the scope of what CAPPS II is supposed to do.”
The rights abuses attributed to CAPPS II are equally fanciful. EPIC told the European Parliament that the program violates the Fourth Amendment’s prohibition on “unwarranted government searches.” In other words, by asking your name, address, birth date, and phone number, the government is conducting a “search” of your private effects for which it should obtain a warrant based on probable cause that you have committed a crime. Only the most hypersensitive libertarian will feel that his privacy has been violated by giving the same information (with the exception of birth date) that is usually required to purchase an airline ticket, information that is in wide circulation and that the government already has about most of us on our driver’s licenses. But even if having to give your name is deemed a “search,” the Fourth Amendment only prohibits “unreasonable searches.” In the context of airline safety, having to give this minimal identifying information in exchange for using the airline’s services is clearly reasonable.
Being an advocate means never having to say, “Here’s my solution.” None of the few alternatives advocates will offer when pressed inspires much confidence. Lee Tien of the Electronic Frontier Foundation, who rejects identity verification, supports instead making sure a passenger gets on the same flight as his luggage, a quaint procedure from the days before anyone thought someone would blow himself up along with his fellow passengers. He also okays intrusive hand searches of carry-on bags. Beyond those measures, he says, there is no need to check a passenger’s identity or possible terror ties. So you wouldn’t mind sitting next to an al-Qaida operative? I asked. “Is he armed?” Tien responded. He has gone through the same physical screening as everyone else, I replied. Tien refused to answer the question. But with weapons getting past airport screeners regularly, and with terrorists working on hard-to-detect biological weapons, exclusive reliance on such physical checks seems reckless.
Other privocrats offer even less workable alternatives. Harvard privacy researcher Richard Sobel, for example, thinks the government should focus on finding terrorists, not screening air passengers. So you support better intelligence?
I asked. Yes, he replied—but not by using the Patriot Act’s provisions allowing law enforcement agencies greater intelligence sharing, or by surveilling mosques, or by canvasing flight schools for Arabs, or even cultivating stronger relations with Arab and Muslim communities in the U.S., unless FBI agents also cultivated stronger relationships equally with all communities. And fingerprinting and screening foreign visitors? No and no.
The most promising alternative to CAPPS II—a voluntary trusted-traveler program—drives the privacy advocates wild, because it would expose them as mountebanks. Passengers who wanted to avoid extensive security screening would submit to TSA background checks to get a permanent, fraud-proof biometric ID card that would zip them past security. Passengers who prefer not to give their name to a TSA computer in favor of waiting in line for toiletries inspection would get the full physical screen. The ACLU’s Barry Steinhardt opposes the trusted-traveler concept because it “creates two classes of airline traveler.” Well, yes: the class of low security risks and the class of unknown security risks, not serfs and aristos, or blacks and whites. Of course Americans, especially frequent business fliers, would freely join the low-risk class in droves, thus revealing the “privacy community’s” minuscule base. Indeed, Frankfurt’s airport is pushing ahead with iris scans to clear passengers, and US Airways already screens its personnel by their irises at Charlotte/Douglas International Airport.
With CAPPS II already under attack, an imaginary privacy scandal ginned up by the advocates and amplified in the press threatens to topple it entirely. Here’s what really happened:
Following 9/11, private companies and research outfits showered the government with offers of help and expertise. Among them, Northwest Airlines offered several million passenger records to NASA’s Ames Research Center to test whether data mining could identify terrorist fliers. NASA promised to keep the data confidential, guarded in a secured lab that could only be entered by pre-screened employees with a personal identification number. Likewise, JetBlue Airways gave Pentagon contractor Torch Concepts 1.5 million passenger records for data-mining research to safeguard Defense Department facilities. To protect privacy, Torch stripped passengers’ names and other unique identifiers out of the records, and at the project’s end, destroyed the data.
At a security conference in February 2003, Torch showed a slide of a passenger’s multiple addresses and fraudulent Social Security numbers (whose possession is a crime) to illustrate how pattern analysis could spot suspicious travelers. The passenger’s name was not shown. The slide ended up on the Internet.
Privacy advocates went berserk, and dug up the Northwest case as well. The two airlines now face hundreds of billions of dollars in class action lawsuits. EPIC has filed a Federal Trade Commission complaint against Northwest that, naturally, says not one word about terrorism or 9/11 as the cause of Northwest’s cooperation with NASA. Even though the TSA workers who brokered JetBlue’s cooperation with Torch did nothing wrong, they have received a public rebuke from the Department of Homeland Security’s chief privacy officer and have been sent to “substantial” privacy sensitivity training.
Not surprisingly, no other airline has been willing to provide TSA with passenger data for testing CAPPS II. At present, TSA possesses only 32 simulated passenger records—created from the itineraries of its employees who volunteered the data—to stress-test a system that at peak load will need to process 300 transactions per second. Development of the program has come to a standstill, with no resolution in sight. And private-sector cooperation with the War on Terror has evaporated.
Expanding their dragnet, the privacy crusaders have now targeted a dazzling state-run law enforcement program called “Multistate Anti-Terrorism Information Exchange” (MATRIX). MATRIX allows police officers to search multiple law enforcement databases and public records in the blink of an eye after a crime has been committed. If a child is abducted, for example, and witnesses say the license plate of the abductor’s brown van contained an A and a 4, MATRIX can instantaneously provide a list of all possible vehicle matches and their owners’ addresses within a given radius. Since 74 percent of abducted children who are murdered are killed within three hours, speed is critical. Phil Ramer, special agent in charge of statewide intelligence in Florida, where MATRIX was developed, told the Washington Post that he had never seen so powerful a system in his many years in law enforcement.
The databases MATRIX uses contain only information that law enforcement can routinely access: its own records on suspects, convicts, and sexual offenders, as well as publicly available information from county courthouses, telephone directories, and business filings, which have been compiled by Florida-based data aggregator Seisint. MATRIX users must be specifically authorized police personnel, who may enter the system only for ongoing criminal or terror investigations. Searches are recorded for auditing against abuse. An officer searching MATRIX by someone’s name, address, Social Security number, or partial license plate will get back his criminal history, as well as information to help locate him—current and past residences, previous residents at those addresses, family relations, business addresses and publicly listed business associates, pilot’s licenses or registered vessels, and other state licenses—most of which any Internet user could find. And that’s it.
MATRIX elegantly solves law enforcement’s notorious, long-standing problem of non-communicating databases. Los Angeles Police detective Jeff Godown explains: “The predicament we’re in is we deal in an enormous amount of data. We have 50 databases to query from. If a detective tries to track down a suspect’s arrest reports, he needs to go to five different systems, then decipher the linkages. It’s physically impossible. He gets frustrated and says: ‘I’ll just wait for another arrest of the guy.’ ” MATRIX can search multiple databases and produce a single result—fast—before the suspect strikes again.
MATRIX developers had hoped to create a nationwide system, so that if an Arizona highway patrolman were trying to solve a fatal hit-and-run, he could type in the killer’s partial Kansas license tag to identify possible suspects quickly. Had national databases on shootings and fingerprints been available and fully utilized, D.C. snipers John Muhammad and Lee Malvo could have been found long before their fatal tally reached double digits. “It was almost as if these guys operated knowing that if they crossed state and local jurisdictional lines there would be no way we would put the clues together,” a Maryland officer told the New York Times.
For a while, it looked like local law enforcement would, in fact, connect the dots across jurisdictions. Every state police agency that saw MATRIX in action said: I’ve gotta have it. Orange County, California, sheriff Michael S. Carona has said that if he had had access to MATRIX, he could have prevented the murder of five-year-old Samantha Runnion, abducted from outside her home in July 2002, and found, raped, along a mountain road the next day. After MATRIX’s debut, 13 states signed on.
Then the privacy advocates struck—with by now excruciatingly familiar tactics: 1. tie MATRIX to Total Information Awareness and John Poindexter; 2. misrepresent its features; and 3. demagogue about nonexistent privacy abuses.
The Michigan ACLU proclaimed that MATRIX is “an end-run around the Pentagon’s ‘Total Information Awareness’ program that Congress rightly put a stop to. . . . In essence, the government is replacing an unpopular Big Brother initiative with a lot of Little Brothers.” The ACLU’s Barry Steinhardt insists that MATRIX is a “data mining” program, resulting in the “mass surveillance of the American people.”
Though for the advocates anything that involves data seems indistinguishable from data mining, MATRIX is not a data-mining program. It does not search for patterns in data in order to create new knowledge or make predictions. It merely retrieves information associated with a person, address, or vehicle, like any garden-variety database query. Its innovation is its ability to link discrete databases and the extraordinary speed with which it does so.
MATRIX foes also misrepresent its contents. The ACLU says the system could access “such areas as purchasing habits, magazine subscriptions, demographic information, and lifestyle categorizations.” It could, but it doesn’t. Again, law enforcement is forced to defend not only the program that exists, but any number of possible variants that don’t exist. Though the MATRIX database does contain information from data aggregator Seisint, on such publicly recorded transactions as business liens or corporation filings, it includes no personal consumer information. Undeterred by MATRIX’s frequent descriptions of the program, journalist and privacy advocate Jeffrey Rosen warned in the New York Times that MATRIX combines “significant amounts of consumer data.”
Most absurd are the Orwellian potentialities attributed to MATRIX. Former Georgia congressman Bob Barr successfully led the charge to force Georgia to withdraw from the information-sharing pact. The issue, said Barr, was whether “we want to live in [George Orwell’s] 1984, or . . . in the kind of society that America has always been.” It is hard to see how allowing law enforcement to get vehicle-registration information on a homicide suspect immediately after a drive-by shooting leads to totalitarianism. In the same vein, Bill Scannell, president of Don’t Spy on US, told the Washington Times that MATRIX is an “end-run around the Fourth Amendment to outsource our constitutional rights,” a catchy but meaningless phrase, since MATRIX searches no documents covered by the Fourth Amendment.
Despite their falsehood, the attacks worked. MATRIX is disintegrating. Nearly two-thirds of the original states have pulled out of the pact, with New York and Wisconsin most recently announcing their withdrawal. The remaining members—Florida, Connecticut, Michigan, Ohio, and Pennsylvania—are under steady fire from their local ACLUs. Other states that had expressed interest have gone silent.
The significance of this string of defeats is dire. Antiquated information retrieval and the inability to share intelligence among agencies are among the greatest impediments to better crime solving. The fate of MATRIX reveals that the privacy battalions oppose not just particular technologies, but technological innovation itself. Any effort to use computerized information more efficiently will be tarred with the predictable buzzwords: “dossiers,” “surveillance,” “Orwellian,” “Poindexter.”
In a telling formulation, the ACLU charges that “what officials blandly describe as database integration is really the mass compilation of dossiers about citizens, criminal and innocent alike.” This is pure fabrication: database integration does not result in “dossiers.” But how many agencies will make their systems more efficient if the ACLU and its cronies always stigmatize the venture this way? Many databases contain information on “criminal and innocent alike”—license-plate databases mingle plates of saintly drivers with those of armed robbers who run red lights; title-deed registries contain addresses of neighborhood benefactors as well as of sex offenders. A computer cannot search those databases for information about a criminal suspect without also scanning car or property information on the innocent, though in doing so, it intrudes not at all on the record holder’s “privacy.” But if a computer run now amounts to compiling “dossiers” on innocent citizens, the ACLU is really saying there should be no scans of databases at all. And it is very close to saying that any police investigation is illegitimate.
Nor is there any sign of impending rationality in the public discourse about privacy and national security. A panel named by the secretary of defense to review TIA is set to recommend that the Defense Department seek permission from a court every time it wants to employ data mining to detect terrorism—even on intelligence in the government’s own files. In other words, the government may collect anti-terror information but can’t analyze it electronically unless a court approves.
This proposal, by such veteran establishmentarians as Floyd Abrams and Lloyd Cutler, represents a level of blind hysteria about data mining that even the ACLU could admire. The volume of information in government intelligence files long ago overwhelmed the capacity of human agents to understand it. Analysts don’t have a clue what’s in the full range of relevant databases; they miss connections between people and events every day. Machine analysis is essential if we are to stay on top of the intelligence tidal wave. But if the Defense Department must seek court approval every time it wants to search its own files electronically, national security protection will grind to a halt.
Such sweeping overreaction seems to come more from arcane academic theory rather than from empirical reality. Dismayingly, the TIA panel reverentially quotes Michel Foucault, one of the biggest academic frauds of the late twentieth century, for the proposition that “ ‘modern society increasingly functions like a super Panopticon’ [prison watchtower] in which government constrains individual behavior by the threat of surveillance.” One should hope that this is the first and last time that a Defense Department advisory board has invoked Foucault, since this French poseur, who presented Western culture as one big plot to suppress dissent, difference, and minority rights, has less than nothing to contribute to the national defense. Like Foucault, who never troubled himself with evidence, the Washington wise men offer no backup for their claim that government increasingly “constrains individual behavior by the threat of surveillance.”
Yes, we can think of abuses in the past: McCarthy witch-hunters, J. Edgar Hoover’s political snooping, illegal break-ins by minions of columnist Safire’s old boss, President Nixon, and various presidential abuses of the power of the IRS. Yes, we can understand how the emanations and penumbras of the Supreme Court’s Griswold and Roe v. Wade decisions have surrounded the supposed right to privacy with a talismanic mystique. And yes, no doubt people who have paid by credit card for afternoons at the No Tell Motel have a moment’s anxiety that data mining could deliver their receipts to their spouses or bosses. But the abuses are rare aberrations and, after Nixon, triggered sweeping reforms. In fact, American society is probably the least “constrained” in world history, and its government the most obedient to the rule of law. Anyone who thinks that Americans are skulking around inhibited by the possibility of government surveillance should take a stroll through any public street, mall, or Internet chat room. Individual choice of “lifestyle” is virtually free from traditional taboos; public discourse is wide open.
But the philosophers of government repression leave such observable details far behind. Journalist and law professor Jeffrey Rosen provides a peerless example of the disconnect between the hothouse rhetoric of the privacy crusade and the mundane reality of government action. Data mining, he says in The Naked Crowd, his post-9/11 book, is a “technolog[y] of state surveillance and discrimination.” Through it, the Bush administration wants to rank people “based on the government’s estimation of the citizens’ trustworthiness.” The government has no business, he says, trying to predict people’s behavior based on their actions in the past: “In America individuals are supposed to be free to define and redefine their own reality, free from government efforts to predict their behavior.” Oddly, he is particularly exercised about anti-shoplifting cameras, since they deny shoplifters the right to return to the scene of their crime without being recognized—or, as Rosen would put it, “to define and redefine their own reality.” But even in this trivial case, Rosen mystifies the role of technology. Any merchant would properly ban known shoplifters if he had the manpower and memory to do so; cameras are not the source of that “classification and exclusion,” in Rosen’s phrase, but merely an aid to them.
But we are not talking about shoplifters. The United States was attacked by fanatics who have never stopped expressing a fervent hope to destroy the entire society. Before the onslaught of the privacy brigades, scientists and intelligence officials were trying to find ways of identifying those fanatics before they strike again. Proposals for assessing risk in such areas as aviation do not grow out of an omnivorous desire to “rank citizens” but out of a concrete need to protect people from a clear threat. If the government assigns different security risks to an Iowa music teacher traveling to her high school reunion and to a Pakistani-American funder of Islamic madrassas and host to radical sheiks from Morocco, it is not out of a passion for “hierarchy” but because of the reality of Islamic terrorism.
Information technology can help government in its constitutional responsibilities to protect the nation; indeed the congressional jo int inquiry into September 11 found that “a reluctance to develop and implement new technical capabilities aggressively” was a cause of the pre-9/11 intelligence failures. The report added: “While technology remains one of this nation’s greatest advantages, it has not been fully and most effectively applied in support of U.S. counterterrorism efforts.”
The privocrats will rightly tell you that eternal vigilance is the price of liberty; trouble is, they are aiming their vigilance at the wrong target.