Why Bobbitt is Wrong on TIA

INTRODUCTION

In Terror and Consent, Philip Bobbitt argues in favor of the Pentagon’s Total Information Awareness (TIA) data-mining proposal. Bobbitt, 262. Below, I explain why his argument is flawed.

BACKGROUND

Under the TIA system, proposed in 2003, the Pentagon was to collect massive amounts of information from “databases containing” persons’ “financial, educational, travel, medical, housing, and communications data.” Id. When the data on a given person indicated that he or she was much more likely than others to be a terrorist, the Pentagon would learn the name of the person and intervene to prevent an attack. Even though Congress soon outlawed TIA, Bobbitt argues that the system should have been implemented.

COUNTERING BOBBITT’S PRIVACY ARGUMENT

First, Bobbitt argues that the TIA system solves “the problem of protecting privacy.” Id. at 263. Bobbitt thinks this because, under the TIA system, if a given person’s information did not indicate an extraordinarily high chance of he or she being a terrorist, the Pentagon’s computer program would not allow Pentagon officials to learn the person’s identity. Id. at 262-3.

Bobbitt’s privacy argument is based on a fallacious assumption. Namely, he assumes that as long as the TIA system protects the privacy rights of most Americans, it adequately protects the right to privacy. This assumption ignores the destructive effect that the TIA system would have on privacy in general. By allowing the Pentagon to learn the identity (and hence many of the private activities) of those who reach the critical mass of suspiciousness, the TIA system adds an exceedingly broad caveat to the right to privacy: one has a right to privacy so long as his or her activities are not especially suspicious. In other words, the TIA system does not protect the right to privacy; it replaces this right with a duty to act “normally.”

COUNTERING BOBBITT’S FOURTH AMENDMENT ARGUMENT

Next, Bobbitt argues that, since the TIA system would have collected only information to which there was no “legitimate expectation of privacy,” the system would not have violated the Supreme Court’s Fourth Amendment doctrine. Id. Since the information accessed by the system either would have already “been in the public domain” or would have been previously “voluntarily submitted to private companies without restriction,” Bobbitt argues that citizens would not have a legitimate expectation of keeping the information private. Id.

Assuming arguendo that there is no legitimate expectation of privacy for information that is in the public domain or has been voluntarily given over to private companies, Bobbitt’s argument nonetheless has a crucial flaw. Namely, unless one adopts an irrationally narrow definition of voluntariness, it is inaccurate to say that all of the information mined by the TIA system would have been “voluntarily” given to private parties.

Bobbitt assumes that when one gives “financial, educational, travel, medical, housing, [or] communications data” to a private company, this person ipso facto voluntarily divulges this information. Id. at 262. Thus, under Bobbitt’s definition of voluntariness, when one calls her parents or lover, she is at the same time volunteering information about the call to her cell phone provider. Similarly, under Bobbitt’s definition, when one books a flight to a family member’s funeral, she is volunteering her flight information to the airline. Yet, to argue that either of these persons have a choice to avoid divulging this information is to rely on an overly formal notion of voluntariness, one that assumes that if one has any alternative (including skipping her mother’s funeral or not speaking to her lover), she has a choice. In the end, then, much of the information given to third parties, although not given at gunpoint, is not given voluntarily. As a result, citizens still have a legitimate expectation of privacy for much of this non-voluntarily divulged personal info. (I do not mean to imply that the current Supreme Court would be willing to admit that there is a legitimate expectation of privacy for this info.)

Indeed, the nearly unanimous outcry against the TIA system all but proves that there is a legitimate expectation of privacy for much of the information that the system would have mined. As Bobbitt notes, the public was strongly against the system, both “left-wing and right-wing privacy groups” opposed it as too intrusive, and liberals and conservatives came together in Congress to kill “the project completely in a rare act of alacrity and finality.” Id. at 261-3.

Yet, rather than taking this nearly unanimous opposition to the TIA system as proof that the system proposed to mine information to which there was a legitimate expectation of privacy, Bobbitt theorizes that the opposition to TIA was a result of a failure to educate the public. Id. at 263. For Bobbitt, if the public knew the realities of the TIA system, it would approve of the system. Instead, the public relied on allegations that the TIA program would make accessible “every public and private act of every American.” Id. at 262.

Bobbitt’s explanation for the widespread opposition to TIA lacks credibility. He argues that the public would have changed its mind if it had heard the truth about the system. But assuming that Bobbitt is correct that the public believed that the system would make accessible “every public and private act of every American,” the public did basically know the truth about TIA. Given the plethora of private companies that keep records of activity, the TIA system would give the Pentagon access to almost every act of a given American citizen. In turn, it is incredible to assert that if the Pentagon simply had told citizens the truth (“the government will have access to almost all, but not literally all, of your actions”), the public would have changed its mind.

CONCLUSION

Bobbitt’s arguments in favor of the TIA system are irrational. Despite his logical contortions, the system fails to adequately protect privacy and mines information to which the public holds a legitimate expectation of privacy.

-- AndrewHerink - 29 Apr 2010