The Pinpoint Search

How super-accurate surveillance technology threatens our privacy

Julian Sanchez from the January 2007 issue

(Page 4 of 4)

David Post, a cyberlaw expert at Temple University, hopes we can deploy pinpoint searches in ways that preserve the balance between security and privacy. “The kind of oversight you want in a system like this is very different from what you’d want in the ordinary warrant case,” he says. “There you want someone looking at the evidence as it relates to a particular target. Here I want someone who’s looking at the system as a whole, an ongoing systemic analysis of a kind that really is new.” In Post’s model, a panel of legal and technical experts with appropriate security clearances might be granted ongoing oversight responsibilities over an ECHELON-style vacuum-cleaner surveillance program to determine whether it was sufficiently fine-tuned.

Silverglate suggests another way to take advantage of the new surveillance tools while still protecting privacy: establish a “multi-level, tiered approach to electronic searches.” At the first level, a filter system overseen by the kind of panel Post imagines sifts through communications, flagging suspicious conversations. Intelligence agents might then listen to brief snippets of conversation selected by the computers but, crucially, without learning the identities of any of the parties to the conversation.

Then, says Silverglate, “based on what the vacuum cleaner picks up, the NSA is going to have to go to a Foreign Intelligence Surveillance Act court and see if they have probable cause to find out the identity of the person on the line.” Such an approach might even, paradoxically, make such secret courts, notorious for almost never rejecting wiretap applications, less inclined to defer to intelligence agencies, since instead of being asked whether they are prepared to give terror hunters the benefit of the doubt, judges will already know some of the contents of the communications for which they’re being asked to authorize the release of identifying data.

That doesn’t solve every problem with such systems, of course. It does not deal with the chilling effect that may occur when speakers begin to watch their words on the phone based on the fear that they will trigger a computer in Fort Meade if they say the wrong thing. And once the necessary infrastructure is set up to use such a system to catch terrorists, it would be both relatively simple technically and powerfully tempting politically to expand it to hunt for the least sophisticated perpetrators of whatever crime is particularly unpopular at the moment.

Whether we adopt the sanguine approach of Rosen and Brin, embrace the strong privacy protections of Napolitano and Rotenberg, or look for a middle path with Silverglate and Post, we will be forced to make difficult tradeoffs. But the debate over how to strike that balance must begin now, before today’s prototype rolls off tomorrow’s assembly line. These new technologies are too powerful to use thoughtlessly. We’re already entering a pinpoint-search world. Now we must decide how to live in it.

Contributing Editor Julian Sanchez is writing a book on disobedience.