It wasn’t data mining

January 23, 2006

Why did the White House avoid oversight and warrants when implementing its warrantless-search program? One possible answer came by way of the New York Times in late-December, when the paper explained that the administration worked with telecommunications companies to trace and analyze large volumes of telephone and Internet communications, without warrants, after 9/11. It suggested an explanation as to why the administration couldn’t get a warrant — it was data mining and there was no specific target for which a warrant could be issued.

But Gen. Michael Hayden, the principal deputy director of national intelligence, said today that this explanation is wrong. Unfortunately, he didn’t offer a compelling alternative.

The nation’s deputy national intelligence chief today defended a controversial domestic spying program as “targeted” and “focused” on the al Qaeda terrorist network, denying that it casts a “drift net” over Americans’ telephone and e-mail communications. […]

Hayden stressed that the program “is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused.”

Really? Because it certainly doesn’t sound like it. According to the FBI, there’s nothing “targeted and focused” about it — the program produces a flood of useless tips involving conversations of innocent Americans. In bureau field offices, the NSA material is viewed as unproductive, prompting agents to joke that a new bunch of tips meant more “calls to Pizza Hut,” one official, who supervised field agents, said.

At least with data mining, I understood why the administration didn’t want to go to a FISA court judge. An administration lawyer couldn’t very well ask for a warrant to cover the millions of people whose calls might go through a telecom “switch.” But if Hayden is right, and there was no data mining, we’re back to the beginning in understanding why, exactly, the administration found it necessary to circumvent the law.

What’s the answer? As Kevin noted, the administration didn’t seek warrants because they knew the FISA judges, who routinely approve every request that comes before them, had minimal legal standards the administration couldn’t meet.

The standard laid out by General Hayden — a “reasonable basis to believe” — is lower than “probable cause,” the standard used by the special court created by Congress to handle surveillance involving foreign intelligence.

….General Hayden said that the difference in the legal standards…played an important role in determining whether to go to the FISA court or not.

The 1978 law allows the agency to seek a warrant up to 72 hours after wiretapping begins when speed is of the essence. But even in an emergency, General Hayden said, the law required that the attorney general approve a wiretap before it could begin. But “the attorney general’s standard,” he said, “is a body of evidence equal to that which he would present to the court,” meaning that an emergency application would also have to show probable cause.

The data mining answer was, in most respects, less offensive. In Hayden’s explanation, the administration could have asked for a warrant, but found the legal standard too high. And rather than ask Congress to change the standard, the administration, as Kevin noted, just went ahead and did what it wanted to do anyway.

Hayden’s remarks in DC today were supposed to be a key part of the administration’s defense of the program. As far as I can tell, it makes the controversy worse, not better.

January 23, 2006 at 5:38 pm

“The president’s authorization allows us to track this kind of call more comprehensively and more efficiently,” Hayden said. “The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.”

The administration must be asked to provide examples of situation which fail to meet the probable cause standard but which meet the relaxed standard of “reasonable basis to believe”. It is it sufficient to be of Middle Eastern heritage for this unreasonable administration to think they have a reasonable basis? Without examples we have no way of knowing what exactly he means.

Also what does it mean to track a call “more comprehensively”? Either you track a call or you don’t. This suggests to me that NSA is looking not at individual calls, but a web of calls. This would make it more likely that innocent people are ensnared.

We need answers under oath not more pr gibberish.

It’s scary that we have a general talking to us at all about something that’s being done to us.

And if it’s not data mining, then what is it? What else is so full of false positives that it is leading agents to Pizza Huts?

And why should we believe this general at his word? That’s the whole point of the 4th amendment. We shouldn’t have to.

Don’t they have an 800 number that allows people to turn in their neighbors for suspicious activity (1-800-callspy, or something like that)? There are enough wingnuts out there that will report you for criticizing the preznit or wearing a yellow elephant T-shirt that I bet they get a ton of calls.

It fits the general characteristics — a high volume of worthless leads, something a government wing nut would call a “reasonable basis to believe”, but something that also falls short of probable cause (mainly because most judges are paranoid nutcases like the jerks spying on us).

If so, that is worse, infinitely worse than data mining. I’m reminded of some of the old “red scare” propaganda films that were produced in the mid-50s, designed to get people to rat out their friends and neighbors for being pinkos.

The President authorized the breaking of a law. That’s the bottom line here. And he needs to be held accountable by the American people, otherwise we’ve allowed our rights to be abrogated for good.

I think I see where they’re going with this. Thanks to pop culture sources like Law & Order and every single cop movie since Dirty Harry, the general public tends to misperceive the “probable cause” standard under the 4th/14th Amendment as some sort of trivial technicality that bleeding-heart defense attorneys use to put rapists and murderers back on the street. It sounds like the administration is trying to shape an argument that they “know” where the terrorists are, but can’t be expected to obtain warrants because those silly legal rules about “burdens of proof” would prevent them from rushing in to foil the terrorists’ plot in time .

Sadly, this argument might work in gaining public sympathy, even if the Democrats do adopt the “rule of law” argument that CB and others have suggested. It seems to me (and please correct me if I’m being too cynical) that the common perception is that constitutional restrictions on law enforcement do nothing but help criminals; the case has not been convincingly made in the public forum that these controls function as an essential brake on tyranny and exist for the good of every citizen, not just for the sake of the occasional guilty party who manages to successfully cheat the system. Until that premise has been accepted, I’m afraid that the administration’s claim to an inherent right to ride roughshod over Constitutional provisions will receive exactly the warm public welcome that they expect.

(**P.S. I realize that the argument against the president’s authority to conduct warrantless wiretaps rests on FISA, not the Fourth Amendment. However, the Constitution sets the “probable cause” standard for obtaining a criminal warrant, which is the real issue in this aspect of the discussion.)

My take on the General’s testimony is that the NSA is doing what it has always done operationally, but with a much bigger net. The net is too sweeping to pass FISA due diligence, hence the sneaking around.

Why deluge the FBI with useless leads? It depends on whether your goal is catching terrorists or covering your b**t after the next attack. If there is an attack, the hunt will be on for the bureaucrat who was too cautious. Better to bury the one good lead among 10,000 bad ones (‘we sent the name of the terrorist to the FBI and they didn’t do anything’), than make a reasoned judgment and not tap the bad guy’s phone in error.

We’re admittedly not getting the whole story, but based on the FBI sarcasm one wonders how far the “reasonable basis to believe” standard is from “just curious” or “nosy.”

Agents get enough wild goose chases when there is probable cause. Having them do wiretaps when the justification doesn’t even meet the probable cause level is giving them hopeless odds of finding anything, which is bad management on top of criminal. It’s like the dart board (or dumb) approach to intelligence gathering. Insult plus injury.

It was also shared with other agencies.
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/31/AR2005123100808.html

On the one hand we’re told that the Patriot Act is necessary to get terrorists, but not a single one has been apprehended due to any laws in the Patriot Act. The Patriot Act has, however, been used by the government to go after domestic crime, like drug offenses.

It’s a police state, run by one political party that has no intention of relinquishing power. And why should they? Do you see the people out in the street protesting?

I’m not so sure he’s telling us that there’s no data (voice?) mining going on here. Let’s take a closer look:

“is not a drift net over Dearborn or Lackawanna or Freemont, grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. This is targeted and focused.”

OK, now it may sound like a strong statement, but it carries the quallification of 3 US places. One could certantly make the case that just listening to international calls with a connecting point in a US city would pass his targeted and focused test.

I think this may be a great deal of smoke with very little fire.

what exactly is data mining? Is it a general evesdropping on a certain area of people? instead of zoning in on specific people for a specific reason?

I am so sick of this government and their ineptitude. Every morning I wake up and I don’t fear a terrorist attack, I fear what this government is doing to us and how they have ruined this country.

All I can say is that this government seems to have violated nearly every word of this:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

I mean, they don’t have a warrant and they are using a lower standard of suspicion. The only thing that they seem to be even keeping up appearances on is that they know the persons to be searched. (That picks from two subordinate clauses, and we don’t know it to be true.) Oh well, one out of three shows they’re trying, right?

Diane, data mining is a data processing for extensively analyzing a large volume of data to try to find relationships and patterns that might not be obvious. For example, a hospital might analyze all their patient records over a period of time to try to find correlations between, say, diagnosis, outcome, and primary care physician to see if some physicians have better outcomes for certain diagnoses than others.

In more ordinary terms, it is someone poking around in a large volume of data to see what they learn. Mining is used as an analogy, but fishing could have worked just as well.

It is tough to get a warrant for data mining, because of the 4th amendment requirement of “particularly describing the place to be searched, and the persons or things to be seized.”

Data mining can also be used to hone in on a person or group of people. (Grossly oversimplified, any corrections welcome!). Say you’re interested in Acme Corporation, specifically an upcoming business deal in Iraq. First, you might troll for emails containing mention of the terms ‘Acme Corporation’ and ‘Iraq’. From those emails, you can further learn what and how the specific deal is referenced (say, ‘Northern Iraq electric project’ or the like). From that information, you learn the emails and IP addresses of those who are in he business group.

From that point forward, you can have the mining system automatically forward emails to your analysts from that relatively limited set of those which reference the project and those from the key players. They can then decide which of the emails should be forwarded to Halliburton … oh, did I mention, Acme is competing with Halliburton for the project?

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