(The opinions expressed here are those of the author, a
columnist for Reuters.)
By Jack Shafer
Dec 19 (Reuters) – “Data! Data! Data!” Sherlock Holmes cried
impatiently. “I can’t make bricks without clay.”
The sleuth’s insatiable hunger for petabytes of data
presaged that of the National Security Agency’s by a little less
than seven decades. Like the NSA, Holmes took a pointillistic
view of the truth. Find as many facts as possible, he held, view
them from as many angles as possible, turn them inside out or
set them aside until you collect more facts, and then, like
pouring iron into a mold, cast your most durable image of
reality. “It’s an old maxim of mine that once you have
eliminated the impossible, whatever remains, however improbable,
must be the truth,” as Holmes stated in Arthur Conan Doyle’s
“The Adventure of the Beryl Coronet.”
The age of Snowden has made well-known NSA’s demanding data
desires. So, too, have we gotten a glimpse of how the agency’s
information foundry works, that place where mathematicians
massage the metadata of phone records and Web traffic with
powerful relational database software to strip away the
impossible in pursuit of the “truth.” Whether you believe the
collection and analysis of your personal data is trivial or
intolerable, the age of Snowden has alerted us all to the coming
of the information singularity, where near perfect portraits and
detailed biographies of us all can be assembled if enough
computer power is thrown at a big enough data set.
“Records that once would have revealed a few scattered tiles
of information about a person now reveal an entire mosaic – a
vibrant and constantly updating picture of a person’s life,”
U.S. District Judge Richard Leon wrote in his Klayman v Obama
(pdf) opinion earlier this week, ruling the NSA’s bulk
collection of phone data likely unlawful.
Judge Leon picked his mosaic metaphor shrewdly, knowing that
the NSA and other agencies that handle classified information,
such as the CIA and FBI, are not principled foes of the mosaic
metaphor. Far from it. When it suits their purposes – which is
often – federal agencies rely on the regulatory power of “mosaic
theory” to knock down freedom of information requests from the
press and others for seemingly innocuous material. The Code of
Federal Regulations states this power succinctly. Agencies can,
in some instances, classify compilations of unclassified
government information because taken together and analyzed, the
end product can be used to pierce the veil of what has been
classified. Likewise, the government frequently rejects FOIA
requests because it fears that declassified information can be
combined with public domain information to reveal classified
information. ” he ‘mosaic’ approach,” the code states, is “the
concept that apparently harmless pieces of information, when
assembled together could reveal a damaging picture.”
One of the clearest examples of the mosaic theory run amuck
resides in a 1998 case, where workers sought information about
the allegedly unlawful handling of hazardous material at “Area
51.” But because foreign powers, using the power of a mosaic,
might be able to determine the nature of the classified weapons
programs run there, the information request was rejected. Ten
years ago, mosaic theory was used to dash FOIA requests
pertaining to 700-plus people detained after the 9/11 attacks.
“The mosaic theory turns many of the assumptions of liberal
democracy inside out and allows the government to make
information secret and put it beyond the reach of judicial
requests when that information could not properly be classified
either under executive order or statute,” wrote Robert M.
Pallitto and William G. Weaver in 2007’s Presidential Secrecy
and the Law.
The government obviously wants its mosaic theory both ways.
It wants to say we shouldn’t worry about it holding mountains of
our metadata that, when run through NSA’s mosaic-machine, can
reveal our health status, our financial condition, our comings
and goings, our political persuasions, and our tastes in vice,
etc. But at the same time, it treats itself to a hysterical fit
when asked for the release of bland government information
because somebody (a terrorist, a spy, or even a journalist)
might use it to piece together a state secret and endanger
national security.
When the government seeks to protect its own interests, its
mosaic theory reasoning “has no logical limit,” as Susan N.
Herman, former head of the ACLU, wrote in 2011. Every whole is
made up of pieces, therefore every piece can potentially be
denied to the public. “Because there is no way for anyone to
disprove the possible significance of any piece of information,
taking this observation as a defense to any disclosure of any
information gives the executive branch a blank check to withhold
all information,” she continues.
The impending information singularity is likely to
strengthen both the arguments of the civil libertarians, who
will warn that rampant data collection combined with growing
computer power will make us all naked before the state, and of
the national security establishment, which will argue even more
ardently that nothing can be known because if anything is known,
all will be known!
Soon, as the singularity coalesces, both constituencies
might be proved right. But until then, let’s tease out the
primary difference between the two kinds of mosaic-building.
Denying the government total access to the minutia of its
citizens has long been an American legal principle. The
practical argument against additional collection was further
advanced this week by President Barack Obama’s NSA-review panel
and Judge Leon, with both concluding that the government’s
massive collection of individual metadata has averted no
terrorist attack thus far. Meanwhile, the parallel principle
that citizens have a right 1) to know what their government is
up to and 2) change government policy when dissatisfied is well
enshrined, mosaic theory or no mosaic theory. Even Sherlock
Holmes could get behind that.
(Jack Shafer)
