Whereas, in the 1940s, the electromagnetic spectrum carried few signals, many of which were relevant to war and statecraft and even the best encoded of which were subject to decryption, nowadays, the electronic environment carries gargantuan amounts of broadcast and beamed material from myriad sources - almost none of which is of interest, while that which is, is almost always either unidentifiable (e.g. one-time cell phones) or in unbreakable codes.
Nevertheless, in the 21st century as in World War II, US intelligence puts the bulk of its COMINT resources in sorting through electronic haystacks. Worse, it is recording as many of ordinary citizens' electronic communications as it can get.
This poses no problems to enemies and criminals, while exposing every ordinary citizen to whatever the government may wish to visit upon him.
After 9/11, the Defense Department started putting together a computer program it called Total Information Awareness, to bring together all publicly available (and some non publicly available) information about Americans, such as records of telephone calls, credit card transactions, internet and e-mail usage, especially concerning "sensitive" subjects such as contacts with foreigners, but by no means limited to that. The program would sift these gargantuan records in search of "patterns or associations" that would warrant further investigation.
After a public outcry, the program shifted to the National Security Agency (NSA), which was already doing something similar with patterns of communication between phones and computers in America and abroad. NSA called it "Transactional Analysis." But this affection for "data mining" can mean only that no sector of the universe of communications is any more interesting than any other. It is a declaration of intellectual bankruptcy akin to airport screeners paying equal attention to grandmas as to imams.
In short: If you have an idea of what you are looking for, you do not need data mining. If you do not, data mining will only provide excuses for indulging your prejudices. The alternative to picking conversations out of cyberspace is to pick them up live through remote sensing, or as they are being transmitted - more like bugging than wiretapping.
It happens that technologies for such things as reading vibrations from windows and emanations from cables have made enormous advances and, though only a small part of the US COMINT budget, they have produced disproportionately big results. But to "bug" someone is somehow to designate him as an enemy. Yet, sorting through electronic haystacks is so attractive precisely because it avoids explicit political choices.
For example, though US officials wring hands over the fact that financing for much anti-American terror comes from the vast Saudi Arabian royal family and entourage, they have been unwilling to commit emplaced sensors to finding out who is doing what because they would not want to act on the information. They prefer to argue about who our enemies may be. Unfortunately, the US government has come to default conclusions about who the real enemies are - American conservatives.
The facts about data mining:
- It is useful when keyed to known targets or known incidents AND the persons involved do not take fundamental precautions.
- These precautions have long been easily available to serious criminals, as well as terrorists.
- Vast troves that consist almost exclusively of data on innocent Americans beg to be used against them.
- The Foreign Intelligence Surveillance Act of 1978 and the special court it established cannot hinder abuses. They only legitimize them.
- The best example of what data mining can do comes from the CIA's 2003 kidnapping of Abu Omar on the streets of Milan Italy. CIA contractors then drove Omar to the US air base at Aviano and then flew him to Egypt. Italian police, using cell phone records, found that a few phones had made a pattern of calls around the place of the kidnapping. From that, they reconstructed every detail of the entire episode, including the identities of the CIA people involved. It helped that these master spies had left their frequent flier numbers at the hotel to get credit, and that they used credit cards traceable to the CIA.
But what happens when the targets are intelligent human beings? Anyone who steps up to a checkout stand at Walmart or CVS in a border city like Tucson may notice that the person ahead is buying several piles of prepaid cell phones, and paying for each separately, in cash. These phones are destined for drug cartels. Each phone is used to make just one call or to receive just one call. After that they are thrown in the dumpster. Why? Because, by doing that simple little maneuver, the criminals defeat all the hundreds of billions of high-tech that the US government is throwing into data mining.
There is another way to do that. If you are working for a foreign government, or otherwise have serious money, you can have foolproof encryption devices. Even your numbers can be hidden from the US government's big ear.
- None of this is news. In the late 1970s, it was already so clear that the mathematical art of code making had definitively won the battle with code breaking that the NSA was lobbying Congress to force industry to provide "backdoor access" to commercial encryption devices. Congress said, "No." At the same time, just as mobile phones were becoming common, it was clear how easily they could be used as "one time pads" to defeat surveillance. Serious enemies of the US, and serious criminals, have long since shifted to secure communication. Nevertheless, the US intelligence community remained wedded to its concept of "the big ear."
- This means that the vast trove of data being assembled at that one million square foot super secret facility in the Utah desert is good for nothing, except to play with data about and from regular guys - and a few low-level bad guys. Humans being human, it is going to be used to go after the government's least favorite people.
- The Foreign Intelligence Surveillance Act (FISA) and the secret court that it established are the opposite of safeguards. The FBI and NSA proposed FISA in 1978 (and the president supported them) to absolve themselves from the responsibility of the judgments they made concerning wiretaps for national security. Prior to that, the Executive Branch had made these judgments under the president's power as Commander In Chief. The exercise of the wiretap power, like all others, was subject to accountability. That is what the bureaucrats sought to shed by asking Congress to create a special court that would pre-approve each wiretap.
But, although the special court is presided by Art.III judges, it could never fulfill a properly judicial, independent function because it had to operate ex parte - meaning hearing only one side of any case - and secretly. These two features were the very definition of the "star chamber" infamous in Anglo-Saxon law. The court could only be a rubber stamp. How could it have been anything else, since there are no judicial criteria for what constitutes a national security threat?
In short, involving the judiciary was a cheap bureaucratic device that threatens to have worse consequences as new powers are assigned to it.