Judge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens — their email, documents, phone conversations, nearly everything they say or do — regardless of whether they are suspected of any wrongdoing or not. Posner’s argument is quite startling and troublesome. Posner writes:
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.
So, taking Posner’s argument to the extreme, there’s no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on — so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people’s speech and freedom? Posner ignores these things.
Posner goes on to write:
The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
According to Posner, the FISA is too restrictive because it doesn’t allow surveillance on innocent U.S. citizens. However, the FISA protects U.S. persons from broad surveillance to prevent the government from systematically spying on citizens. Posner would sweep aside these protections, many of which are in place because of the Fourth Amendment.
Posner says:
Many of the relevant bits [of data for learning about terrorist activities] may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.
And how can we limit the government to just using it for “national security”? What constitutes “national security” versus ordinary crime? As I wrote in an article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004): “What precisely is ‘national security’? Is a mass murderer on the losse a national security issue? Some have even argued that drug trafficking is a natiional security issue.” The line between national security and domestic criminal activity is a fuzzy one. Moreover, many government abuses have been done under the cover of so-called “national security.”
Posner continues:
The terrorist menace, far from receding, grows every day. This is not only because al Qaeda likes to space its attacks, often by many years, but also because weapons of mass destruction are becoming ever more accessible to terrorist groups and individuals.
If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.
For more thoughts on Posner’s op-ed, see:
Marty Lederman, Judge Posner and “Ad Hoc Initiatives” (i.e., Presidentially Sanctioned Felonies) (Dec. 21, 2005)
Kieren Healy, Posner Forgets Himself (Dec. 21, 2005)
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.
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