There has been an enormous shift in Anglo-Saxon law. Our criminal legal system is, or used to be, based on warrants from individualized suspicion. The 4th Amendment to the Constitution is based on individualized suspicion and individualized warrants. General warrants were part of the reason for the American Revolution. The King’s agent could search a house everywhere, or an entire neighborhood with one warrant. The American colonists said they would not put up with that, they said we’ll fight you, and we’ll have a tea party about it. The picture below is an engraving of John Wilkes Booth commemorated in his struggle against general warrants and the liberty of the press, in 1768. This is our legal tradition.
And in our tradition there is an idea that there is a sphere of privacy around and individual for the individual’s house, his “papers” as it says in the Constitution, which the government cannot breach without meeting a certain level of individualized suspicion. What we have seen in the development of information technology is that the sphere of the individual is getting smaller and smaller. We — (everyone!) — is allowed much more access to information and our consoles are ubiquitous. And while the government cannot actually breach the sphere of the individual physically, they are making this much more easy by building an Orwellian apparatus to fix themselves to the information gateways and peer into our online “papers”. Our legal tradition has an understanding that this is not aligned with our principles of justice, while positive law regarding the individual’s sphere is scarcely articulated nor is it protected. The apparatus can get around the individual’s privacy, discover his papers and spy on them without consent, probing the contours of one’s daily life through information technology.
These are not isolated incidents of poorly trained FBI agents doing this work. This is a systemic and systematic enterprise of privacy violations. This work is paving the way for a future society in which government have complete and total access to all papers, pictures, genetics, identity, transactions, voIP data, and all other encrypted data. The work of the “dataveillance” system has been set in motion since the 80s, with the development of the enterprises that have been slowly accumulating the technology, the infrastructure, the capital, and the legal privileges to access private data. One of these enterprises is the elite intelligence community at DARPA, the Defense Advanced Research Projects Agency.
The FBI is hardly alone in mining the mountains of commercial data now available through the informatics of the apparatus. The Government Accounting Office found 199 data mining projects in more than 50 government agencies. The largest of these programs originated inside the mind of DARPA, the program known as Total Information Awareness. This program was to use predictive data-mining to detect suspicion patterns of terrorist operations. TIA’s controversial logo is a seeing-eye in the sky, a big brother-ish symbol. Their thesis was that the set of transactions across space, time, and by some number of people, will create a “unique signature”. Total Information Awareness can then use this signature to correlate and scale the potential for terrorist attacks and other threats. Some of their mad-hatter projects include programs like asymmetric wargaming environment clients, which model and predict terrorist behavior by aggregating all sorts of disconnected data; scalable social network analyses, which will most likely soon straddle and penetrate social software and tools like facebook and myspace; programs like Genisys, which enables “ultra-large, all source information repositories” to track terrorist suspects; and humanID (human identification at a distance), which — like the name — identifies humans based on biometric data — and this would no doubt suggest and then require a sweeping panopticon of infrastructure in order for it to develop effectively.
In 2003, TIA changed its name from Total Information Awareness to Terrorist Information Awareness, giving the program another reason and a greater duty to exist given the circumstances. The program was already extensive before 2003, and it seems unlikely that TIA only data-mines for terrorist suspects–its infrastructure is too broad to be used only for that purpose. Under pressure from civil libertarian groups, Congress in 2003 also cut funding for Total Information Awareness. However, there was a “black budget” in which the TIA programs were funded, and these were moved to the National Security Agency (NSA) office in Maryland. There were elements of TIA at DARPA that Congress felt was valuable and decided transition them to another agency within the intelligence community. The fund cuts in 2003 appear not to matter, since the technology explosion has made it inevitable that powerful states and governments will want to use this information and invasive technologies to its advantage and its power. As the motto of the total information contractor, Narus, says “scientia est potentia” — knowledge is power.