What's behind the NSA domestic eavesdropping program? And how bad it is, really? Defense analyst Willliam Arkin and law professor Orin Kerr have competing theories.Arkin takes a peek at section 126 of the USA PATRIOT Improvement and Reauthorization Act Of 2005, which requires the Attorney General to submit a report to Congress "on any initiative of the Department of Justice that uses or is intended to develop pattern-based data-mining technology." He wonders if that data-mining might be what the NSA is up to.
Patterns of activity associated with actual terrorists in the past are derived from investigations and debriefings -- let's say, for example, visas from certain countries, calls from public phone booths to Pakistan, renting of cars with newly acquired driver's licenses, one-way airline tickets. Patterns are used to trigger "tip-offs."Massive amounts of collected data -- actual intercepts of phone calls, e-mails, etc. -- together with "transaction" data -- travel or credit card records or telephone or Internet service provider logs -- are mixed through a mind-boggling array of government and private sector software programs to look for potential matches...The law says "the search does not use personal identifiers of a specific individual or does not utilize inputs that appear on their face to identify or be associated with a specified individual to acquire information," I take it to mean the new computer-based data mining isn't looking for an individual per se, it is looking at information about all individuals (at least all who make international telephone calls or send e-mails overseas or travel to foreign countries according to the government) to select individuals who may be worthy of a closer look.In other words, with the digitization of everything and new computer and software capabilities, the government couldn't go to the Court or the Congress and say, "hey, we'd like to monitor everyone on a fishing expedition to find the next Mohamed Atta."Senator Jay Rockefeller and others have made noises that the NSA project reminds them of the most notorious of data-mining efforts, Total Information Awareness, or TIA.But Kerr, leafing through James Risen's new book, says that "it seems less likely to me than it did before that this is a TIA-like data-mining program.""As best I can tell, the NSA program was not actually recording domestic Internet traffic, putting it in a database, and then 'mining' it for key words and the like," he writes. Instead, what went on is packet-sniffing -- "installing a monitoring device on a steam of traffic that looks for specific sequences of letters, numbers, or symbols... [like] phone numbers and e-mail accounts... For those with criminal law experience, this was basically a large-scale pen regsister/trap-and-trace or wiretap, depending on how the filters are configured."Which, of course, would be a whole lot less scary than some ginormous profiling project. We'll see.(Big ups: David)UPDATE 10:50 AM PST: FBI whistle-blower Coleen Rowley calls BS on claims that the courts somehow got in the way of catching Zacarias Moussaoui, the so-called "20th hijacker." NSA whistle-blower Russ Tice, says he wants to talk about the agency's "highly classified Special Access Programs." A little birdie tells me that he won't be the last.