When Big Brother Meets Big Data

If federal authorities want to see the data of an American citizen, they should be forced to come through the front door -- and only with a court order based on probable cause, as our Founders intended.
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WASHINGTON, DC - FEBRUARY 17: Rush Holt speaks during the Safe Drinking Water Act press conference on Capitol Hill on February 17, 2011 in Washington, DC. (Photo by Kris Connor/Getty Images)
WASHINGTON, DC - FEBRUARY 17: Rush Holt speaks during the Safe Drinking Water Act press conference on Capitol Hill on February 17, 2011 in Washington, DC. (Photo by Kris Connor/Getty Images)

In 2011, shortly after IBM's supercomputer Watson defeated two human champions on the game show Jeopardy!, I had the chance to face off against the machine in a simulated match on Capitol Hill. I got lucky -- I won my round -- but I remember being awed at Watson's ability to draw upon massive troves of data to answer complex, unpredictable questions.

In the context of Jeopardy!, Watson was amusing and impressive. In the context of the machine's current efforts to treat lung cancer, Watson is inspiring. But there may be a dark side to Watson's abilities. The New York Times reported last week that, according to a government consultant, "Both the N.S.A. and the Central Intelligence Agency have been testing Watson in the last two years."

To me, this revelation adds a new layer of concern to disclosures that the NSA has, apparently, been recording the metadata on every phone call in the country.

Why is Watson's involvement so troubling? If the NSA truly possesses a record of every phone call made in the United States, that database would be so large as to be practically unusable by ordinary humans -- ensuring that law-abiding citizens could expect a degree of "privacy through obscurity." Watson-style technology has no difficulty sorting through billions of records, but in the end it's what the computer is told to look for that opens to door to error or even mischief.

Even if you are guilty of nothing, a simple inquiry to a supercomputer could reveal deeply personal, private information. If you send a message to a mental health provider, these supercomputers could know it. If you called your parents while they were vacationing overseas, these supercomputers could know it. If you expressed a view to your House or Senate representatives, these supercomputers could know it.

Personally, I believe that the best way forward is to prohibit the government from creating such all-encompassing permanent databases in the first place. That is why I opposed the FISA Amendments Act, which provided the legal basis for the NSA's dragnet surveillance, when it came to a vote in the House in 2008.

I raise this concern not as someone who fears technology. To the contrary, I am a research scientist, a patent-holder, and a great believer in the power of technology to create jobs and improve our lives. But our legal system is falling hopelessly behind the capabilities of our technology, and we must reform our laws to meet modern-day challenges.

Interestingly, a group of intrepid, patriotic public servants with real computer expertise and an understanding of the law showed us over a decade ago how all of this could be done without violating the privacy of American citizens.

In the early part of the last decade, a group of researchers at NSA developed a program called THINTHREAD that had the ability to sort through the mass of data NSA receives and pick out items requiring further attention -- all without compromising the Fourth Amendment rights of Americans. Unfortunately, their effort came to naught because of internal politics at NSA and competition from a Beltway-bandit boondoggle called TRAILBLAZER. The whole episode became public and ultimately led to a Defense Department Inspector General report, the declassified portions of which paint a damning picture of mismanagement at NSA and retaliation against Thomas Drake and others who reported these problems to the IG.

For the last several years, I have offered amendments to either the annual defense policy or intelligence authorization bills to protect whistleblowers like Drake, and every time the current House majority has refused to even allow those amendments to be considered on the House floor. Real oversight of the intelligence community is impossible so long as the Thomas Drakes of our national security establishment are treated like criminals instead of the public servants they are. Getting those kinds of protections into law remains one of my top legislative priorities.

What about other entities designed to protect the civil liberties of Americans?

At a June 18 hearing before the House Permanent Select Committee on Intelligence, members of Congress were told repeatedly that there are multiple layers of "oversight" for the surveillance programs now in the news. I heard those same assurances repeatedly during the eight years I spent on HPSCI. But as I discovered back then and as some of my colleagues pointed out this week, the reality is that nearly all of the alleged "oversight" is internal to the NSA or the Justice Department. Congress's watchdog, the Government Accountability Office (GAO), is statutorily prohibited from auditing these surveillance programs -- a grave omission that I tried to correct when I served on HPSCI.

Congress created a Privacy and Civil Liberties Oversight Board in the same legislation that created the office of the Director of National Intelligence in 2004. Unfortunately, the Board was never fully staffed and under President Bush was sufficiently politicized that board member Lanny Davis quit in protest. Although the Board was taken out of the Executive Office of the President in subsequent legislation in 2007, it remains understaffed and underfunded nearly a decade after its creation. And only in the wake of the New York Times' revelations is it beginning to focus on our latest surveillance controversy.

And as for the Foreign Intelligence Surveillance Court (FISC), the judicial body designed to review -- and if necessary refuse -- government surveillance requests? Saying "no" to the executive branch is something this court rarely does.

According to data obtained by the Electronic Privacy Information Center, the FISC has approved over 33,000 FISA applications since 1979 and rejected only 11. As the judges on the FISC rotate on and off the court every few years, the ability of the court to maintain a genuine institutional memory and expertise on these issues is compromised. Part of the solution would be for Congress to mandate permanent, independent "special masters" for the FISC.

There is precedent for drawing upon specialized experts to make such weighty determinations. In the Microsoft anti-trust case in the 1990s, for instance, Judge Thomas Pennfield Jackson utilized "special masters" with deep knowledge of computer software. In the complex field of medical malpractice, advocacy groups have supported the creation of special courts staffed by medically trained judges.

We should also consider modifying the statute governing the FISC to ensure judges assigned to it serve for longer terms (say ten years vice the current seven) and that they can be reappointed to the FISC at a subsequent date. Additionally, we should change the law to allow the Government Accountability Office to audit surveillance programs. Finally, Congress should prohibit any attempts to place limits on the ability of American citizens to encrypt their private communications and data, or to require companies in the electronics or telecommunications business from building in "back door" mechanisms to disable encryption used by American citizens.

If federal authorities want to see the data of an American citizen, they should be forced to come through the front door -- and only with a court order based on probable cause, as our Founders intended.

Rep. Rush Holt (D-NJ) represents New Jersey's 12th Congressional District. He is a former member of the House Permanent Select Committee on Intelligence and the former chairman of the House Select Intelligence Oversight Panel.

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