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What Was the Data Mining Dispute About? | 18 comments (18 topical)

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I'm no 4th Amendment expert (5.00 / 1) (#7)
by Big Tent Democrat on Sun Jul 29, 2007 at 04:29:55 PM EST
But my feeling is that the FISA judge interpreted the data-mining and the surveillance as one enterprise.

To wit, in the judge's mind, the data mining was directed as a form of FISA surveillance that was not done in conformance with FISA therefore the post hoc applications were akin to to using an illegal search to prove probable cause.

I think the data mining was not neutral - they were directed at targets who could not be surveilled under FISA, think US persons not evidentially linked to a foreign power, etc.  

[ Parent ]

Here's what I don't understand (5.00 / 1) (#9)
by Anonymous Liberal on Sun Jul 29, 2007 at 05:54:56 PM EST
Marty Lederman suggests that the primary legal objection had to do not with the data-mining itself, but with the follow up, i.e., the use of that data.  

But that's just another way of saying that the legal objection revolved around actual surveillance, not data-mining.  If the data-mining was legal, then you can use that data for whatever you want. If you use it to identify targets for warrantless surveillance, the legal problem is not with the identification process, but with the warrantless surveillance.  

But the Times article (and previous articles by the Times and USA Today) suggest that there may have been a legal objection to the data-mining itself.  If that's true, then the problem necessarily has to do with how the data is obtained, not what it's used for.

To understand what's going on here, we have to figure what Comey and Goldsmith were objecting to.  Was it the use of warrantless surviellance, or was it the obtaining of massive amounts of data without a court order?    

[ Parent ]

Again (5.00 / 1) (#10)
by Big Tent Democrat on Sun Jul 29, 2007 at 06:24:36 PM EST
It seems to me that you are viewing them a separate activities and I think Marty is suggesting targetted data mining, if there is such a thing.

Goldsmith's testimony may be the key to the issue.

[ Parent ]

Targeted data mining (none / 0) (#14)
by scarshapedstar on Sun Jul 29, 2007 at 11:00:59 PM EST
Let's say, hypothetically, "somebody" wanted to use the NSA panopticon to intercept and store anything sent to or from, I dunno, house.gov, senate.gov, johnkerry.com, hell, anything having to do with Democratic candidates and their supporters. And then they performed a few keyword searches on it, I dunno, "scandal", "strategy", "donation", whatever they thought might turn up something juicy.

And then let's say they wrote one of their patented memos declaring that it's all legal because network architecture means that many emails take at least one hop outside the United States, and therefore it falls under the jurisdiction of FISA.

Sprinkle in a dash of "pleasure of the President" and "no controlling legal authority" and you're good to go. That is, if you had the audacity to spy on political opponents. Thank God the Repugs haven't stooped that low or anything.

[ Parent ]

INTEL 101 (none / 0) (#18)
by NMvoiceofreason on Mon Jul 30, 2007 at 01:29:26 PM EST
First of all, it is perfectly legal for the NSA to record EVERYTHING you say on the phone or on your computer. Whether this actually happens or not is a matter of conjecture.

In FISA, as in longstanding practice, nothing of any importance has occurred until the "intercept" is performed - the data is actually used. Note that phone numbers dialed, header info from e-mails is NOT an intercept - it corresponds to the "pen register trace" in 4th amendment search and seizure law.

So only when the keyword search is done on it (or a translator listens to it) has an intercept occurred.

This is the inherent problem with data mining under FISA. When you use the content, you must have a warrant for the content, unless you can show it does not involve US persons or territory.

Of course such warrants can be applied for retroactively, within 72 hours.

[ Parent ]

What Was the Data Mining Dispute About? | 18 comments (18 topical)

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