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February 15, 2006
Posner: No controls needed over executive data mining
Discussing the domestic surveillance program, Richard Posner:
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.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration’s political enemies. That danger is more remote than at any previous period of U.S. history.
I read this as Posner saying, “It doesn’t matter what the data says, or who has it, or how they got it. The flow of data in and out of the executive should be entirely unregulated. All that matters is what the executive does/does not do as a result of accessing that data; we’ll regulate those behaviors directly.” It’s shades of Scott McNealy. But does it make sense?
No. First of all, Posner’s blunt assertion that the only risk here is political blackmail is unsupportable. What about discriminatory enforcement of domestic law? Or people within the executive converting the data for personal gain? Or the risk that the databases assembled by NSA will be compromised, thus enabling any number of malfeasances against millions of people?
Second, Posner’s equally startling assertion that the risk of political blackmail/intimidation is vanishingly small seems incredibly detached from modern politics. Campaigning on both sides of the aisle is ruthless, and there’s every reason to believe that a database with potential to reveal politically-advantageous information would be exploited to its fullest—particularly if that database lacks the procedural safeguards that come with legislative oversight. As mining tools get more and more sophisticated, and the database grows, the possibility of someone extracting political advantage from such a system approaches 1 incredibly fast.
Posner’s judicial empiricism is sometimes frustrating, but it does teach one thing—think seriously about the costs and the benefits of a chosen policy. Sweeping costs under the rug doesn’t help anyone.
Posted by Rob Courtney at February 15, 2006 03:26 PM