Probable Cause

PROBABLE CAUSE….This sort of got buried in a post a couple of days ago, so I want to repeat it here in a post of its own. It’s about computers and the meaning of “probable cause.”

The nice thing about probable cause and reasonable suspicion and other similar phrases is that they have a long history behind them. There are hundreds of years of statutory definition and case law that define what they mean, and human judges interpret them in ways that most of us understand, even if we disagree about which standard ought to be used for issuing different kinds of wiretap warrants.

But the NSA’s domestic spying program doesn’t rely on the ordinary human understanding of these phrases. Instead, it appears to rely primarily on software algorithms that determine whether or not a person is acting in a way that merits eavesdropping. These algorithms are sophisticated and complex, and even their inventors have only a hazy idea of which specific behavioral patterns will exceed any given algorithm’s threshold for recommending a wiretap.

If you’re recommending a book on or compiling a credit score before approving a home loan, this might be OK. But is it OK when it comes to approving wiretaps on U.S. citizens? And if it is, who decides which algorithms to use? Who decides when to upgrade them and when to try new ones? Who tests them, and who evaluates them for reliability? The math jocks who created them? The computer programmers who turned them into code?

And what kind of oversight is there? No court can 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.

Are we all OK with this?