Data-Mining-Something So Horrible That Comey Would Object (Emptywheel)

[kpete]

Data-Mining Two
by emptywheel

Marty Lederman's http://balkin.blogspot.com/2007/07/whats-legal-significance-of-data-mining.html post on data-mining says what I've been trying to say for two years about the NSA program. Contrary to what the NYT and others suggest, we don't have to look beyond data-mining to find something so horrible that a good conservative like James Comey would object. We just need to get to the point where the US is using data-mining of dubious connections to replace the idea of probable cause in a surveillance program.

.....................

Data-Mining Americans

Now I'd like to summarize something else Marty points to. He reviews a signing statement Bush made to the Defense Appropriations Act for 2004 (written in fall 2003) that defunded the Total Information Awareness Program. Bush used some legal mumbo jumbo (described in section two of Marty's post) to exempt at least one program besides TIA from defunding. It's unclear how extensive was the exemption Bush imagined he secured himself with his signing statement, but one of the restrictions on data-mining specified in the Act was the following:

Well, the very next subsection -- 8131(b) -- also purported to impose a limitation on that data-mining program (the permitted one): "None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens."

In other words, when Congress defunded TIA, they at least tried to prevent at least one other data-mining program from accessing data on Americans or people in the US. But we know that Bush's program only requires that one end of tap (which we now know is the end-product of the data-mining program) to be outside of the US, and it only requires one target of the tap to be a non-US citizen. Add in the reports that the NSA was never entirely successful at isolating the US data from the non-USA data, and it seems not just likely, but probable, that Bush was violating this part of the Appropriations Act.


Which is a fancy way of saying that the data-mining violated the requirements for probable cause in FISA, but the data-mining itself probably violated a law Congress had passed in Fall 2003 specifically to prevent data-mining of American citizens. Which would mean that, no matter the outcome of debates over the AUMF-based justification for violating FISA and the Article II-based justification for violating FISA, if Bush was also violating this provision, then he was violating something passed subsequent to the AUMF and subsequent to Bush's initial authorization of the program.

more at:
http://thenexthurrah.typepad.com/the_next_hurrah/2007/07/data-mining-two.html#more

[Bitwit1234]

1. The constitution of the United States says Congress makes the law

and that bush as the president signs them. Any so called signing statement he makes means nothing in the long run. HE can not make the laws. I wish someone would challenge these signing statements. If we are going to have a constitution then it should be followed. And why in the hell don't the go after the five republican supreme court judges. The approved the fact in contridiction to the constitution that the church rules the country. You know - we couldn't challenge the fact that bush gave our tax money to churches. AND we couldn't complain....That is direct violation of the constitution.

[EVDebs]

2. The data-mine is already offshore, privatized, and under NO domestic controls

Bahamas Firm Screens Personal Data To Assess Risk
Operation Avoids U.S. Privacy Rules

By Robert O'Harrow Jr.
Washington Post Staff Writer
Saturday, October 16, 2004; Page A01

http://www.washingtonpost.com/ac2/wp-dyn/A36853-2004Oct15?language=printer

" Bell's new employer, the Bahamas-based Global Information Group Ltd., intends to amass large databases of international records and analyze them in the coming years for corporations, government agencies and other information services. One of the first customers is information giant LexisNexis Group, one of the main contractors on the government system that was known until recently as the second generation of the Computer Assisted Passenger Pre-screening Program, or CAPPS II. The program is now known as Secure Flight.

The company plans to do such things as assess foreign job candidates for risk, conduct background checks on cargo ship crews or take stock of people who want to open bank accounts in the United States, documents and interviews show. It also will provide something the company calls "terrorist risk identity assessment," a company document shows."

The potential collaboration with dataminer ChoicePoint, in nearby Georgia, along with phoneline capability via AllTel, the Jackson Stephen's company, makes for an interesting fait accompli.