Bumbling Bureaucrats

Something that was alluded to near the end of last week's class, but never ferreted out explicitly in the discussion, was the danger--or reality, as I see it--of "mission creep" taking hold of the federal government, particularly its intelligence agencies within the Department of Homeland Security (DHS). The prevalence of contracting between the private and public sectors, these agencies and telecommunications companies, is reminiscent of an iron triangle (i.e., "military-industrial complex") and all too prone to inertia or moral hazard at every vertex. 

The executive branch has been pressuring firms, unilaterally and without challenge, for their databanks or R&D products; these firms stand to receive kickbacks for complying with said demands, or threats when they don't, as in the case of Qwest vis-à-vis the NSA; and meanwhile, the third component to this crooked nexus, Congress, has been lax in updating its outmoded statutes so as to discourage further collusion between the other two components. For example, the USA Today article brought out a troublesome ambiguity in the Communications Act, that it fails to specify--or, more accurately, force the FCC to specify--the breadth of a Section 222 violation. Nowhere, too, does it specify the magnitude of an attendant fine, which needn't bear any relation to how many people's calling habits have been handed over to the government.

This misalignment of incentives is why law needs to keep pace with technology--not just for the reason Kerr identifies, namely that the function of government is no different from what it's always been, but also because human nature hasn't evolved like our technical capabilities have.

More often than not, I'm of the opinion that liberty should not be sacrificed upon the altar of security. My rationale is that it's far from clear-cut when such a sacrifice might directly contribute, in any discernible or meaningful way, to our collective safety. At the same time, I recognize there being extenuating circumstances, such as when our national security is truly at stake (or, according to the precedent of United States v. Arnold, when customs inspections are being carried out at entry points), that call for the momentary suspension of BoR protections.

What do I take issue with, then?  Not so much the conditionality of our liberties in times of public emergency, as the politicized process behind a determination of when--and whose--liberties are going to be revoked. In fact, I recall Tom Ridge, former chieftain of the DHS, admitting that he was coerced into raising the terror alert level on the eve of President Bush's reelection, presumably in order to cow the populace into sticking with the familiar. But, just as most of the 4th Amendment test cases have been fought over lowlifes, I reckon that low-ranking officials under the aegis of the DHS are the most likely to overstep their mandate and thereby infringe on the personhood of their vulnerable charges. Take the example of that Bollywood megastar who, in addition to having been racially profiled, dealt graciously with the unauthorized release of his nude body scan images. 

Of course, breaches of privacy like this one are nothing new, especially when a celebrity is involved. Keep constant the tendency for unthinking officials to commit snafus, while increasing the volume and consolidation of sensitive information at their disposal, and the result is bedlam that, for me, cancels out the utility of whatever gains have been made in preventing terrorism ex ante. 

Briefly, I see this taking place in two counterposed strains: 1) Many of those who have been targeted falsely, based on a suspect amalgam of their traits and behaviors, are not even aware of this. 2) In spite of these efforts at profiling and "link analysis," aspiring terrorists like the "Crotch Bomber" still may not be identified in time--even when all the indicators are there.

Together, those flaws do not argue for heightened screening and coordination among agencies. They suggest instead that imperfect detection is an inevitability, no matter how sophisticated our technologies, because humans will continue to be behind these efforts for the foreseeable future. Rather than stand by as this feedback loop picks up steam, we should be calling, at minimum, for transparency, (retroactive) notification, and even compensation for damages; ideally, for a halt to this potential for accumulation--and misuse--of our personal information.