HAL 9000 Meets Big Brother?

What if the core issue in the warrantless wiretapping arguments currently raging is one that nobody has mentioned? What if the real secret that has yet to be exposed is a logical next step in technological wiretapping capabilities, but one that our legal system has never been faced with before? What if -- in essence -- computers are the ones deciding which calls to tap, rather than NSA agents or judges?

Before I get started here, let me state for the record that everything in this article is pure and utter speculation. I do not have access to anything other than publicly available documents. I have no secret sources. I do not claim anything I say here is the truth -- merely rampant speculation and educated guesses.

Mostly, this means paying attention to what is not now being said by all concerned. The Boston Globe has a good article which outlines the current debate in Congress, and what the Bush White House is pushing for RIGHT NOW, before Congress' summer vacation.

The elephant in the room nobody's talking about, though, may be a seemingly natural technological step but an enormous legal chasm which must somehow be bridged: what legal rights and responsibilities does a machine have as a part of our justice system?

As it is written into law now (including the Foreign Intelligence Surveillance Act or FISA), the basic process is thus: legally acquired evidence comes to the attention of a law enforcement agent. The law enforcement agent outlines the evidence, and applies to a court for a search warrant (for a wiretap, for instance). The judge considers the evidence, and either issues the warrant or declines. The law enforcement officer, warrant in hand, then taps the person's phone and gathers evidence against the authorized person. Such evidence is legally obtained, and can be used as evidence in a court case charging the target with a crime.

That's it in a nutshell. There are two human beings, the agent and the judge, who both assumably make measured, rational decisions about the possibility that someone has committed a crime or is still in the process of committing a crime.

Now, ever since the warrantless wiretapping story originally broke, the discussion has focused (for good reason) on whether it is being used against foreigners or Americans, and where each is standing when the wiretap takes place -- in America or on foreign soil.

But what if those aren't really the sticking points? What all the smoke and mirrors surrounding President Bush's wiretapping may really be obscuring is the fact that they're trying to introduce a new paradigm in American law. Here's what Bush may actually be asking Congress for the right to do: A system of computers vacuums up vast amounts of data traffic, uses sophisticated programs to analyze and filter these communications, and spits out the ones that the software has been programmed to flag for human attention.

If that's true, that would require massive changes to the legal system. Because it is then the computer who decides what could be evidence and what probably is not. If the computer is programmed to think a certain communication is fishy in any way, then it spits the message out for a human being to read. But here's the massive legal problem with this -- the evidence has already been collected. The only evidence to take to a judge to get a wiretap warrant may indeed come from a wiretap. And that wiretap may come from a technological net cast very wide indeed, which is technically supposed to be illegal. And illegally-gained evidence cannot be used to get a warrant, or used in a court case.

This may be the problem that even FISA court judges are having problems with. In general, FISA is a pretty lenient court, approving almost all petitions the government brings before it. It has been called a "rubberstamp court" more than once, for this very reason. But even a FISA court judge can't rule in favor of Pandora's curiosity, because they know that once that box is open, there'll be no shutting it.

This may also be the reason why the White House is arguing for changes in the law rather than asking the FISA court for warrants for whatever it is doing. The changes in the law which are needed may have nothing to do with what is reported in the media, but in fact be more fundamental and far-reaching.

There is a bigger question than "Is it legal?" or "How can we change the law to make it legal?" which must also be addressed: "Should it be legal?" Due to the secrecy surrounding the law in Congress (national secrecy sometimes means closed sessions and secret laws), this debate may have to happen among the public, since the lawmakers may be unable to legally discuss the issue.

This argument will fall along the fault line of those who strongly believe in civil liberties (even if it makes intelligence and law enforcement work harder), and those who believe in security at all costs (even if it means their phone will occasionally be tapped by a computer).

But it's not that simple a debate, which is why I wish this debate would actually start. Because a computer is at the center of the debate, it significantly changes the outlook. The vast majority of communications handled by such a computer system would be rejected and filtered out, meaning a human being never sees them in any way.

Civil libertarians may be more comfortable with a computer tapping their lines than an NSA gnome. Security-at-all-costs people may be more comfortable with the implied efficiency of such a system, since it would free up agents to concentrate on the suspicious messages.

Such a gigantic fishing expedition is currently illegal, to the best of my knowledge (these days, it's hard to know exactly what the NSA or the White House considers "illegal" -- if anything -- when it comes to wiretapping).

But should it remain illegal? Should the FISA law be changed to permit it? For foreign-to-foreign calls? For foreign-to-America calls? For domestic American calls?

These issues need debating. Since the FISA law is up for vague and secret changes, perhaps now is the time to have this debate.

 

[Today's Tom Toles cartoon is worth checking out on this subject.]

 

Chris Weigant blogs at: ChrisWeigant.com