#112: NSA Data Sweep and Profiling

June 11, 2013

The discussion prompted by the revelation of the NSA’s snooping on phone and email records has left many people ambivalent and unsure of what to say. The reason is that the NSA’s defence of its actions has a certain attractiveness, a certain plausibility. Everyone wants to remain safe, and the NSA argues that the information accumulation it is practicing is not only necessary in order to keep us safe, but has actually prevented attacks in the past. Needless to say, all of these claims are kept quite general on the grounds that secrecy is still necessary, since the enemy is also listening. Of course, one should also add the counter-arguments being made, most trenchantly that the NSA did not manage to prevent the FortHood massacre nor the Boston bombing. In short, this is a difficult issue, with at least prima facie plausible arguments on both sides.

There is, however, a point not being made that seems very pertinent.

This same administration has been adamant that racial and religious profiling should never be used in the effort to prevent terrorism (er, “man caused disaster”). The reasoning behind this is that profiling affects the innocent as well as the guilty, and that this is not fair. If there is a principle here, it is likely something like one of the versions of Kant’s Categorical Imperative, namely “treat each person as an end in himself, and never as a means.” And most people find this intuitively satisfying, they tend to agree that it is dehumanizing to treat any person as a means, rather than as an end. I’m far from convinced that racial and/or religious profiling necessarily objectifies people or dehumanizes them or violates any of their Constitution-based rights, but it seems we don’t have to drift into those murky waters in order to find something wrong here.

Surely, what the NSA is doing is precisely what this administration (to be fair, and previous administrations) has railed against. The NSA broad sweep of everyone’s information exactly strikes the innocent along with the guilty!

If profiling is wrong, then the NSA sweep is wrong, and for exactly the same reason. And if the NSA sweep is right, then profiling is right, and for whatever reasons make the sweep right.

Which helps me to make up my own mind on the acceptability of the NSA information sweep. While my intuitions fail to guide me on the NSA sweep directly, leaving me dithering and confused, they instruct me, on the other hand, that profiling is unquestionably the correct policy for dealing with terrorists. Well, in that case I should suppose that the sweep should also be acceptable, unless, of course, there exists yet another consideration militating against it. And so there is! Here it is.

The Fourth Amendment of the U.S. Constitution, occurring in the Bill or Rights, reads as follows:

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. [my emphasis]

A “reasonable” search is one for which a case can be made, one for which there exists “a probable cause”. The grounds for profiling in the war on terror are purely and strongly empirical: while not all Muslims are terrorists, the vast majority and most serious terrorists have been Muslims. This suggests that a heightened caution with respect to Muslims is empirically warranted and that profile based searches would be “reasonable” and thus Constitutional.

The NSA sweep has no such justification since it does not select at all. The NSA sweep of data is utterly democratic, it vacuums up the information of absolutely everyone, without consideration of race, religion, place of national origin, sexual or dietary preference, or species. Paradoxically, it is precisely its democratic character which also makes it unconstitutional. It is clearly against the amendment’s intent that a “warrant” should specify the “place to be searched, and the persons or things to be seized” as “everywhere,” “everyone,” and “everything.”

Consequently, it would seem that the NSA sweep is unconstitutional, while profiling is not. Which is why I support the latter, but not the former.