Federal Electronic Surveillance Legislation Allowed 9/11

The Prologue from Shane Harris’ 2010 book The Watchers: The Rise of America’s Surveillance State is online at Amazon. It is worth reading to understand how federal legislation and regulations can and have fashioned policies that put Americans at risk. In this case, a team at Army Intelligence Command had in 2010 started researching terrorist organizations on the Internet and before September 11, 2001, their data mining operation had identified the Al Qaeda network. Shane Harris explains the process led by Erik Kleinsmith:

He cast a digital net over thousands of Web sites, chat rooms, and bulletin boards. Then he used graphing and modeling programs to turn the raw data into three-dimensional, topographic maps. These tools displayed seemingly random data as a series of peaks and valleys that showed how people, places, and events were connected… A series of peaks signaled that Kleinsmith should take a closer look. He liked to call this visual approach to information “intelligence on steroids.”

Kleinsmith’s data mining tools are not so unusual now, but they were in the government intelligence community in 2000. Unfortunately for Kleinsmith and the thousands who would later die in the 9/11 attacks, gathering information about Al Qaeda operations included information on Al Qaeda operatives in the United States. Federal electronic surveillance law mandated that such information could only be held for ninety days.

So, nearing the ninety day legal limit and under pressure from Army lawyers, Kleinsmith deleted from his computer all information about the Al Qaeda network. This information could have enabled the FBI or local police to detain Al Qaeda terrorists before 9/11, or at least stop them for questioning at airports.

Erik Kleinsmith’s 2005 Senate Judiciary testimony is here.

An NPR segment on Shane Harris’s The Watchers is here.

The Watchers starts earlier with the story of John Poindexter during the Reagan Administration responding to the 1983 attack on U.S. Marine barracks in Lebanon, which killed 241 servicemen. Poindexter’s goal was to developing better electronic surveillance capabilities to allow real-time or at least faster identification of terrorist attack threats.

Electronic information about the 1983 suicide bombing was in hand in various federal agencies before the attack. Satellite photos of a nearby terrorist camp showed preparations and practice for the suicide bomber’s sharp turn and drive into the Marine barracks, phone conversations about a coming “spectacular attack” were recorded but untranslated, and intelligence agencies had recorded many attack threats against U.S. and French soldiers stationed in Lebanon. (Details in the book’s Prologue linked above and here.)

After the 1983 attack John Poindexter and later others continued to develop federal electronic surveillance capabilities they hoped would be able to connect the dots in time to stop the next terrorist attack.

So, how do we encourage innovation in federal electronic surveillance capabilities so the next generation of Erik Kleinsmith’s team at Army Intelligence won’t be slowed or shut down by federal privacy regulations?

One way would be to think reasonably about privacy law. Every few months I receive a dozen or so form letters from banks and credit card companies advising me on changes to privacy policies and on changes in state and federal privacy regulations. All this is legalistic nonsense and a waste of time and money.

Federal privacy laws can be reformed to recognize the reality that information about goods and services purchased, the websites visited or emails sent, don’t belongs not just to me, but also to the people or companies on the other side or in the middle of transactions. Companies should be able to use, share, or sell information about goods and service they provide (unless by contract that have agreed not too).

With privacy laws reformed, potential terrorists can more easily be tracked through travel, purchases, emails, website visits, and online videos watched. In a free society, transparency is of higher value than privacy. Watching transactions and information flows need not violate individual rights.

Transparency need not violate the Fourth Amendment to the Bill of Rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Government agencies and private firms can monitor purchases, websites, emails, and phone calls without searching houses or seizing private papers. Instead, reasonable policies would allow legal monitoring of gatherings where, say, people advocate blowing up buildings or hijacking airplanes. If these gatherings take place on private property or on private secure networks, then warrants would be required based on probable cause.

David Brin’s book, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? and his website, explain the advantages of transparency, and the problems cause by trying to arbitrarily regulate privacy. Chapter One of The Transparent Society is online.

It is absurd to chant “never again” about 9/11 but not reform the federal electronic surveillance policies that allowed 9/11 to happen in the first place.

The book jacket to The Watchers (2010) notes:

Shane Harris chronicles the rise of the American surveillance state over the past twenty-five years and highlights a dangerous paradox: Our government’s strategy has made it harder to catch terrorists and easier to spy on the rest of us.