Minimization and the "Collection First" Surveillance Model

The Director of National Intelligence issued a statement late last night about the NSA collection flap.  It's the smartest thing the government has released so far, and its justification for the program in question seems to confirm my speculation in Foreign Policy yesterday.

First, large-scale collections give the government a way to screen for patterns in communications that will bring to light terrorists who are unknown to the government. As the DNI puts it,  "The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time."

Second, the government justifies collecting a reservoir of data because it is only allowed to consume the data a spoonful at a time. Here's the DNI:

• By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
• All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.

In short, there's less difference between this "collection first" program and the usual law enforcement data search than first meets the eye.  In the standard law enforcement search, the government establishes the relevance of its inquiry and is then allowed to collect the data.  In the new collection-first model, the government collects the data and then must establish the relevance of each inquiry before it's allowed to conduct a search.

If you trust the government to follow the rules, both models end up in much the same place.  I realize that some folks simply will not trust the government to follow those rules, but it's hard to imagine a system with more checks and restrictions and doublechecks than one that includes all three branches and both parties looking over NSA's shoulder. 

In theory, you could add the check of exposing the system to the light of day, but that means wrecking much of its intelligence value. Or you could simply prohibit the collection-first model (and lose the ability to spot terrorism patterns by matching disparate bits of data). I doubt that those "solutions" are worth the price.

 

 

 

Comments

[Bezoar]

Thank you for sharing your perspective on this.

There is one significant difference between traditional law enforcement methods and the "collection first" model - traditional law enforcement checks and balances occur in public view, with relatively full transparency. I believe your statement that checks and balances exist with "collection first" programs, but the concealment of those checks and balances from the public means that the public cannot, by definition, engage in informed dialogue about their appropriateness and effectiveness.

I believe that the relevant agencies are working hard to "do the right thing" in detecting terrorism patterns while preserving Americans' 4th Amendment rights. But I have seen reports that some Americans' data are in some cases being included, and that's where I have concerns about this program.

Even if specific data descriptors and analysis methods need to remain secret to be effective, wouldn't oversight of aggregate data at least be possible? Is there not some way to, for example, publicly account for the number of Americans whose data is being scooped up for analysis? How do we allow for redress in cases where someone's data was acquired inappropriately (i.e. in a manner contrary to the 4th Amendment)?

I hope that it becomes possible to have a more thorough public policy debate on this topic. Thanks again for your views on this.

[Chris Taylor]

Very interesting take, Stewart. What's missing in the discussion so far is what the public likely understands the least...the value of metadata, sometimes over discreet data. I wrote the concept up here:

http://successfulworkplace.com/2013/06/08/are-we-stupid-of-course-the-nsa-crunchs-our-call-data/

We're in an age of Big Metadata and it needs to force changes to what's acceptable for surveillance and privacy. Interesting times.