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    Slate Book Club: Scared of the Government Acquiring Information About You?

    The Slate Book Club is discussing a new book by Shane Harris, “The Watchers: The Rise of the American Surveillance State.” The discussion is between the author and Patrick Radden Keefe, a Fellow at The Century Foundation who focuses on national security and intelligence-gathering. In one segment, they discuss John Poindexter and the failed Total Information Awareness Program and the privacy protections that Poindexter said he tried to build into the datamining program that would have created a massive database on all Americans. Keefe writes:

    To curb the dangers of privacy violations, Poindexter imagined a “privacy appliance,” which would encrypt all of the private data about individuals in the system, keeping it “in a kind of electronic safe that might only be opened upon order of a judge. The judge would have to find that the government had a reason for thinking this anonymous person might actually be a terrorist.” Poindexter called it “selective revelation,” and suggested using the system to track the activity of the very analysts who operated it, creating an immutable audit trail of every search that they conducted, to prevent against abuse.

    My first reaction to this suggestion is to marvel at its novelistic perfection: For Poindexter, the tireless innovator and tech-evangelist, the conflict between security and liberty boils down to a mere software glitch, one best resolved not through debate or any form of deliberative government process but through the addition of a few new lines of code. […]

    My second reaction to Poindexter’s privacy proposals is: hogwash. […] And while some privacy advocates might take comfort in the notion of encrypting private information and keeping it in an electronic safe until TIA analysts obtain a judge’s permission to look at it, this scenario seems almost laughably out of step with prevailing realities. The Watchers documents in terrific detail the NSA’s initiation of a secret warrantless wiretapping program precisely because the traditional requirement of a court order for domestic eavesdropping was perceived as dangerously onerous.

    Harris responds, in part:

    I think it’s fair to regard Poindexter’s magic-bullet theory on privacy protections as preposterous. Certainly, the government’s track record in this area doesn’t encourage public trust. But I still find his idea compelling, partly because he had the gumption actually to propose it and partly because it stands as the most far-reaching and “auditable” privacy regime I’ve ever encountered in the government. Stepping deep into the weeds of the spy biz for a moment, we know that the only true protections against privacy abuses after the government has collected data about us are the “minimization procedures” that agencies use to shield the names of U.S. persons in their reports. I’ve actually argued that we need to refocus our laws radically away from governing the acquisition of information and toward monitoring what agencies actually do with it behind closed doors. But in the meantime, these internal regulations and processes—all of them classified—are the only assurance we have that our names aren’t being passed around in spy circles. Poindexter’s idea trumped all of that. TIA would have subjugated the minimization procedures to its master code and then brought a judge into the mix. That’s a huge leap forward from where we are now.

    But I recognize the implicit problem here: You have to have faith in technology and in people. Both are fallible. […]

    All that said, I still think that his ideas on privacy were far ahead of the times, and still are, and that we have disregarded them at our peril. […] Imagine if they’d ended up ditching the data-gathering and analysis tools and only kept the privacy technology. That would have been a victory for liberty in its age-old fight with security. But caution and wisdom are in short supply in this murky spy world, as evidenced by what happened to TIA. Our leaders broke it into pieces, hid it at the NSA, and let privacy twist in the wind. You don’t have to support TIA or Poindexter to be outraged by that.

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