From The Archives -- HAL 9000 Meets Big Brother?

[ Posted Thursday, June 6th, 2013 – 15:59 UTC ]

I realize that the news Glenn Greenwald just broke on the National Security Agency glomming onto the records of everyone who made a phone call through Verizon is what I really should be commenting on today, but then I realized I had written an article a long time ago which is germane to this debate. Back in August of 2007, I wrote the following piece on warrantless wiretapping, which poses a few questions that have not only never been answered but indeed never even really discussed. Now, I realize that the situations between now and what I was commenting on then are not clearly parallel, since actual wiretapping (recording or analyzing the content of phone calls) is different (and much more intrusive) than merely accessing the records of who called what phone (which is what apparently happened with Verizon). But the wider picture brings up the same basic question this article asks: should vacuuming up all available data and then weeding it out with computers be legally-admissible evidence in a court of law? So I thought it was worth re-running this column today to examine an aspect of governmental communications intercepts that never seems to get talked about.


Originally published August 3, 2007

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


Follow Chris on Twitter: @ChrisWeigant


15 Comments on “From The Archives -- HAL 9000 Meets Big Brother?”

  1. [1] 
    Michale wrote:

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

    The problem is, NO ONE on the Left *wants* to have that debate... Not under the Obama Administration...

    Because, to even CONCEDE that debate is necessary is to concede that Emperor Barack The First just *might* be buck-assed nekkid...

    And absolutely NO ONE on the Left wants to even CONTEMPLATE going there....

    So they will simply repeat by rote over and over and over ad nasuem...

    Obama is good, Obama is great.. Obama is good, Obama is great..

    The entire Left has so locked their entire being with that of Obama that to even CONSIDER speaking out, to even CONTEMPLATE actually DEBATING the wisdom is simply beyond the capability...

    Now, me... I am apolitical.. I'll debate the wisdom of the POLICIES til the cows come home...

    And, being that I am completely and unequivocally LOCK STEP with Obama on the policy, I'll win the debate each and every time..

    Cause all I have to say is, "Obama does it" and viola.... Instant Debate Winner...

    No Lefty can argue the point...


  2. [2] 
    Michale wrote:

    Interesting exchange from that August 20007 commentary...

    It's amazing how I don't even have to bother to make the points I made under Obama that I had to make under Bush in 2007..

    Because we are all (with notable exceptions) on the same page as far as the usefulness of these exact actions..

    I have to hand it to you CW. You called it perfectly back then as to exactly where we were heading..

    But did you ever think that the Left side of the American people would not say a peep about it??

    I would never have called that accurately in a million years...

    Because THAT (I believe) is *the* question that haunts us in the here and now..

    Not the actions and policies themselves..

    But that they are so readily acceptable by the American people on BOTH sides of the political spectrum..


  3. [3] 
    Michale wrote:

    This just keeps getting better and better..

    NSA taps in to systems of Google, Facebook, Apple and others, secret files reveal
    • Top secret PRISM program claims direct access to servers of firms including Google, Facebook and Apple
    • Companies deny any knowledge of program in operation since 2007

    I am simply gabberflasted that no one here is saying "boo" to this...

    Back under the Bush years, Weigantians were adamantly against even a HINT of such powers, as evidenced by the comments of the era..

    I would have really cleaned up the quatloos if I had bet back then that Weigantians, as a whole, would readily accept a POTUS that was Bush/Cheney 10 times over.. :D


  4. [4] 
    Michale wrote:

    VERY interesting..

    According to the leaked documents, Bush is responsible for bringing MicroSoft and Yahoo into PRISM...

    But it was the OBAMA Administration who added Google, Facebook and PalTalk in 2009. Obama added YouTube in 2010. Skype and AOL were added by the Obama Administration in 2011. And, the last holdout (Apple) was added to PRISM in 2012.

    Let me ask everyone a serious question. And I truly hope that ya'all will respond with a serious answer..

    If you knew back then what you know now about Obama's CT policies, would you still vote for Obama in the primary??

    In the General??


  5. [5] 
    Michale wrote:

    President Obama’s Dragnet
    The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.

    I think that what I have been saying for years has become abundantly and undeniably clear..

    When it comes to Counter Terrorism, there really is absolutely NO DIFFERENCE between Bush and Obama sans the '-x after their name...


  6. [6] 
    Michale wrote:

    One has to wonder about the timing of this "leak"...

    It sure has pushed the IRS, DOJ and Benghazi scandals off the front page...

    If I were the paranoid hysterical anti-Obama type....????

    Good thing I'm not, eh? :D


  7. [7] 
    Michale wrote:

    If we had had a President McCain, PRISM would have never gotten off the ground...

    On the other hand, neither would we have ObamaCare..

    So, I guess that's a fair trade for ya'all..

    You get HealthCare "reform" and you get a police state that is a USSR/KGB wet dream...

    I guess that's a trade off ya'all can live with.. :D


  8. [8] 
    Michale wrote:
  9. [9] 
    Michale wrote:

    It goes without saying (But I am going to say it anyways) that I am appalled that such a leak happened.

    By necessity, the world of Counter Terrorism is a shadowy world that MUST be kept secret..

    As much as I "admire" Greenwald for consistently sticking to his principles regardless of the administration in power, he should be taken out at shot for revealing such classified information.

    No, that's not really fair. He is simply doing his job, after all..

    The person(s) that should be shot are those in the government that leaked this...

    I have to honest though and say that this latest revelation has really caused me to do some serious soul-searching as far as Obama's Presidency is concerned.

    While I will NEVER become an Obama-naut who hangs on his every word and reveres him as the second coming, I have to concede that, as a wartime POTUS, he IS doing a helluva good job...

    Credit where credit is due...


  10. [10] 
    Michale wrote:

    Looks like there are some Democrats who have lost the fear of pointing out that Emperor Barack the First has no clothes...



  11. [11] 
    Michale wrote:

    President Obama strolled out to the podium today in San Jose, CA and was immediately at a loss for words. Not only did the President not have teleprompter, his aides forgot his speech.

    “My remarks are not sitting here,” the President declared awkwardly. “I’m uhhh….people….oh goodness….uhhhh...folks are sweating back there right now.”

    President Obama, who’s often mocked for an over-reliance on scripts, shifted uncomfortably smiling for several moments buying time. An aide sprinted out with a hard copy of the speech, tripping at one point, adding to the drama.

    OH.... MY..... GODS!!!

    CW, I think you nailed it in your last Obama Poll Watch commentary..

    June is *NOT* going to be a good month for Obama..


  12. [12] 
    Michale wrote:

    See, when I was growing up, we were always afraid of Big Brother watching us. And now with Obama, we actually have a brother watching us. See what I’m saying. We got a brother watching us. That’s right.
    -Jay Leno

    I have a feeling that Jay Leno might be off the Obama Christmas Card list...



  13. [13] 
    db wrote:


    Sorry to interrupt.

    But #9. We've always said that President Obama is a Center/Right Leader. It's the Republicans who have called him the "MOST LIBERAL PRESIDENT EVER!!!!"

    Please don't be surprised when he fails to live up to the "Liberal' definition. Though feel free in joining mocking the Fox "News" Pundits who have to find ways to criticize President Obama for the very policies they were promoting yesterday.


    The information is out there. It's being used to direct the advertising I receive. So why can't it be used to detect terrorists?

  14. [14] 
    Michale wrote:

    Sorry to interrupt.

    By all means.. I was beginning to think Obama has been abandoned! :D

    Please don't be surprised when he fails to live up to the "Liberal' definition. Though feel free in joining mocking the Fox "News" Pundits who have to find ways to criticize President Obama for the very policies they were promoting yesterday.

    FNC has their own problems that I really don't give a rip about...

    *MY* only complaint has been why do ya'all support Obama when ya'all accused Bush of being a terrorist and a war criminal for doing what Obama is doing now??

    The information is out there. It's being used to direct the advertising I receive. So why can't it be used to detect terrorists?

    So, you are saying that you have absolutely NO problem with such data mining???

    Did you defend President Bush against attacks from the Left over Data Mining??

    Because *I* sure as hell did...


  15. [15] 
    Michale wrote:

    Obama orders US to draw up overseas target list for cyber-attacks

    Exclusive: Top-secret directive steps up offensive cyber capabilities to 'advance US objectives around the world'

    My gods...

    Can't the Obama Administration keep ANYTHING secret???


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