I believe that the NSA has the capability to intercept and store all communication through major telecommunication hubs. If they do not have it today, they are certainly moving towards that goal. So we must assume, as we think about this, that the NSA has this enormous database.

Mukasey and others on the right are defending this capability because it is can be a powerful tool for fighting evil. We on the left are fighting this capability because we believe it can be a powerful tool for promoting evil. The first round went to the left when we voted down the Total Information Awareness program and we let our guard down. The second round has gone to the right when the administration developed it anyway. So we agree it can be a powerful tool, and we are obviously in a fight about it and we are on the ropes.

Where the rubber meets the road is where, when, who and how the data is accessed. The data does not become information until it is organized. Traditional wiretapping takes place in real time, the database can be access after the fact, perhaps far after the fact. That is part of what makes it so powerful. It can also be mined for patterns, or exceptions to patterns. When an evil doer is identified, all his or her social contacts can be identified. Wow!

We need to be proposing adequate legal, administrative and technical paradigms for controlling access to this kind of information. Starting from the assumption that we have a database of everything bypasses the problem of releasing secret information about our actual technical capabilities. Just go for it.

Given we have an enormous historical database of all telecommunicatios: Who should have access to this data? What kinds of security clearances do they need? What relationship does this have to the "unitary executive"? Can the president listen to whatever he deems interesting? What kinds of dataminng are allowed under what kinds of warrents? What warrents are required to blend the information with other government databases?Should there be stages of warrents - one for the pattern searches, a further warrent for narrowing the search, a further warrent for identifying individuals? A further one for actally listening to, transcribing or reading the communications contents. What are the penalties for misuse? Simple unauthorized access ala Obama's or McCain's passports? unauthorized access with minor dissemination to one's spouse? unauthorized access with major dissemination to the media? blackmail? political interference?

And go forth with courage, resisting the temptation to be very afraid.

Posted at April 4, 2008 2:26 PM in response to Conyers Questions Mukasey on FISA Claim