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

I think you could have been much brisker about laying out this argument. You spend too long making two arguments, somewhat repetitively. Yes, Bobbitt's "we're just using data turned over in the private market" so everyone has consented is utterly meretricious. But this is a political tract you are discussing, not a serious work of responsible legal analysis. The important point is that his offering the argument confirms what I and others from the Free World have previously insisted: if you let a private unregulated market in personal information exist, that system will come to do the government's work for it cheaply, and without outraging the citizenry as direct government spying would, which makes vile abuses of power much easier. The behavior of supposedly-respectable public servants like Bobbitt shows how that process happens.

On the other argument, however, you're not being intellectually responsible yourself. Systems that infer who should be an object of government hostility and only reveal the names of suspects to human beings are different than systems in which human beings see all the identities at the outset, just as Google Mail is a different kind of problem because programs infer what advertisements to show you while you read your mail than it would be if editor/censors performed the same task. Some privacy problems are therefore eliminated, Others aren't eliminated. Some new ones are created. To have your own personal video recorder mistake your sexual preference is merely amusing, potentially inconvenient. But to be identified by a government computer program as an enemy of the state is something else again. A clearer explication of what's right and what's wrong about his presentation would be useful.

Beyond the immediate context, however, why are you bothering with Bobbitt's defense of TIA? We aren't doing that at all, we're only doing a bunch of things that look a lot like it, and having Google do some of the other things for us. What difference does it make that the defenders of the national security state, whether they are Republican Texans or Democratic Texans, are going to say its necessary, while non-defenders of the national security state, like Illinois Democrats, are simply going to behave as though it's necessary? Data-mining is to the US of 2010 what aerospace was to the US of JFK and (has he mentioned he's his nephew?) LBJ. It's the hottest part of the hot economy, it's what the US does better than anybody else—or at any rate it might be depending on what that competitor Empire over in Asia is doing, and it's all tied up with national security. It will also, like aerospace, become a particularly important source of corruption in politics. Bobbitt's defense of TIA is mere bullshit slung against a molehill. You should be looking at the larger context through assembly of more recent phenomena, including—just to take two at random—the current joined-at-the-hip posture of Google and the Department of State, and what the recent events surrounding the botched Times Square car bomb taught us about what government can and can't do with respect to the intended core function of national security data-mining.

Andrew,

I moved this one for you as well. If you want to move it back just go into the Edit screen, click on "More" at the very bottom of the edit page, and look for the line that appears further down that you can type on (called "Parent Topic"). Right now it should say SecondPaper%. My guess is that because that topic directory doesn't exist it defaults to the uppermost level (the listing we see it in now). If you were to label that line "CompPrivConst" I think it would appear where it is now as well. So to put it back where it was, you'd change that line to "WebPreferences" since that's the name of the topic it was previously in. I'm not a pro at this, though, so that's just my best approximation.

-- BrianS - 04 May 2010