FISA Outrage

In trying to better educate myself on all of this FISA uproar, I came across this piece which i thought explained things pretty well.

The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that.Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you’re really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant.

Is this useful? Maybe. But we’re not listening in on al-Qaeda’s phone calls to America. We’re tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn’t require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns:

- The algorithms that determine NSA’s profiles are almost certainly extremely complex and technical – far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA’s computer programmers?
- What happens to the information that’s collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever?
- Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy?
- Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they’re started with the best intentions, always get abused eventually.

The oversight on this stuff is inherently weak. After all, no court can seriously evaluate algorithms like this and neither can Congress. They don’t have the technical chops. Do the algorithms use ethnic background as one of their parameters? Membership in suspect organizations? Associations with foreigners? Residence in specific neighborhoods? Nobody knows, and no layman can know, because these things most likely emerge from other parameters rather than being used as direct inputs to the algorithm. For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands. The new bill requires annual review by Inspectors General of the government’s compliance with targeting and minimization procedures, which is better than nothing, but stronger amendments aimed at limiting the targeting of U.S. citizens were specifically rejected. See David Kris here for more.

In the end, everyone seems to have decided that bulk monitoring of electronic communications is OK, and that the new bill provides adequate oversight and minimization procedures. I’m not so sure myself, since I don’t trust proedures like this to stay robust. In any case, I’d say this is the core issue, not telecom immunity, and it deserves more attention. Unfortunately, it doesn’t look like it’s going to get it.

 So here’s the deal; if oversight is the problem, then would more oversight make liberals happy? I really don’t get the liberal position on this issue. I understand they think it violates all kinds of rights but isn’t that for SCOTUS to sort out? Would someone please explain this to me in a way I can understand?