FISA, the so-called "Protect America Act", and other limited musings

Okay - as I've said previously, I've had a devil of a time writing anything coherent about FISA and its augmentation, the so-called "Protect America Act."

I'll begin by observing that the Republicans, for all their faults, are GREAT at naming legislation. "Clean Air Act", "Patriot Act", "Protect America Act". With more honestly descriptive names (e.g., "Rape the Environment Act", "Spy on your Neighbor Act", "Police State Act"), perhaps these wouldn't have passed. The Dems need to learn from their respected Republican colleagues: give your legislation an attractive name! - a name no one in his right mind would dare oppose.

That said, let me try to say something substantive.

The text:

Amendment IV
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.

Always start with the text!

And FISA? Here my source is less than authoritative - Wikipedia:

Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) of 1978 is a U.S. federal law prescribing procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between or among "foreign powers" on territory under United States control.[1]

FISA is codified in 50 U.S.C. §§1801–1811, 1821–29, 1841–46, and 1861–62. The subchapters of FISA provide for:

Electronic Surveillance
Physical Searches
Pen Registers and Trap & Trace Devices for Foreign Intelligence Purposes
Access to certain Business Records for Foreign Intelligence Purposes

The act created a court which meets in secret, and approves or denies requests for search warrants. Only the number of warrants applied for, issued and denied, is reported. In 1980 (the first full year after its inception), it approved 322 warrants. This number has steadily grown to 2224 warrants in 2006. Only 5 warrants have been rejected since the court first met in 1979.

The Act was amended by the USA PATRIOT Act of 2001, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government.

An overhaul of the bill, the Protect America Act of 2007 was signed into law on 2007-08-05.

To the extent that the secret court issues warrants

upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

I suppose I have no legitimate argument with the original act. That the FISA court has rejected only 5 warrants since its creation in 1979 suggests that its standards of "probable cause" are not too stringent!

BUT... this Administration has shown contempt for even this very generous court, and, if the media be believed, has engaged in wide-ranging, non-specific "data mining" of electronic records - phone records, email correspondence, cell phone transmissions.

I am inclined to doubt this Administration's sincerity when it asserts the need for these non-specific intrusions into our personal communications.

Recall, post-9/11 all the discussion focused on "connecting the dots" - the dots were there, they just weren't connected. Generating millions more dots doesn't improve intelligence - better analysis of well-selected dots might help!

As a professional statistician I've some professional acquaintance with "data mining." I am extremely skeptical of its efficacy. Any sufficiently rich database contains patterns. Are these patterns meaningful? Predictive? In almost all cases, the answer is, "no". The data-mining literature cites very few success stories - and those few are repeated ad nauseum to vindicate it.

As humans, we are hard-wired to interpret ambiguous information "meaningfully". Subjective psychological assessments take advantage of this hard-wiring. The Rorschach inkblot test is my favorite example: the inkblots are beautifully colored, entirely ambiguous visual stimuli. There's not a person on earth who cannot tell a story about an inkblot: "a beautiful butterfly on an alpine meadow", "my little sister breaking my favorite toy".

We require order - it is how we survive. Finding order in chaos has been a great evolutionary advantage... it is also the basis of spiritualism, astrology, and all other manifestations of non-rational thought. (For what it's worth: it's also the basis of science!)

Better intelligence is developed with better analysis, not by the accumulation of more raw intelligence.

The Framers knew what they were doing. We ought trust them.

[... and I don't even want to get started on telecom immunity!]

Stop the madness.