DATA MINING UPDATE….Yesterday I noted that the NSA’s domestic spying program was “a system for identifying criminals by statistical analysis,” and suggested that Americans need to decide if they think it’s appropriate to launch police surveillance on people simply because they fit a statistical profile. Today, Noah Shachtman points to a USA Today article that says that’s exactly what’s happening:

The template, officials say, was created from a secret database of phone call records collected by the spy agency. It has been used since 9/11 to identify calling patterns that indicate possible terrorist activity. Among the patterns examined: flurries of calls to U.S. numbers placed immediately after the domestic caller received a call from Pakistan or Afghanistan.

Now, this might very well work. But Eric Umansky links to First Amendment lawyer Floyd Abrams, who was on a panel a couple of years ago that advised the government on privacy issues. Abrams zeroes in on the real problem:

We basically said if you want to engage in data mining, which we said was a very good way to gather information to fight terrorism, you should go to the FISA court to get permission. You should go to the court established by Congress and get an OK from the court to do so, and if ? if you didn’t think that was the right way to do it, you ought to go to Congress and get them to give you more authority to go to that court and get permission.

That’s exactly right. The Bush administration can’t keep this out of the courts forever, and if they continue to refuse to ask Congress to modify the law, there’s a good chance the entire program will get tossed out eventually. That’s what just happened in Germany’s highest court:

In a decision made public today, the justices stated that foreign policy tensions or a collective threat level such as after the attacks of 9/11/01 do not suffice to permit the dragnet/grid/screen [i.e. data mining] searches….The justices found that officials [seeking to do data-mining] must have put forward concrete grounds to believe there will be foreseeable attacks in Germany.

Computer-based searches might very well be an effective way of tracking down terrorists. They might also be an effective way of tracking down lots of other criminals. But if that’s the case, Congress and the courts need to set down clear guidelines and clear oversight for how it can ? and can’t ? be used. The executive branch can’t be allowed to decide unilaterally what’s legal and what isn’t.

The implications of this stuff are pretty far reaching. The American public and its representatives need to stop hiding from it and decide exactly how far they want it to go.

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