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1 Scoping the Issue: Terrorism, Privacy, and Technology
Pages 7-43

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From page 7...
... , terrorist actions throughout history have nevertheless shared certain common characteristics and objectives. First, they have targeted civilians or noncombatants for political purposes.
From page 8...
... 1.2 COUNTERTERRORISM AND PRIVACY AS AN AMERICAN VALUE In response to the mounting terrorist threat, the United States has increased its counterterrorist efforts with the aim of enhancing the ability of the government to prevent terrorist actions before they occur. These efforts have raised concerns about the potential negative impacts of counterterrorism programs on the privacy and other civil liberties of U.S.
From page 9...
... As surveillance technologies have expanded the technical capability of the government to intrude into personal lives, the law has sought to maintain a principled balance between the needs of law enforcement and democratic freedoms. Public attitudes, as identified in public opinion polls, mirror this delicate balance.2 For example, public support for counterterrorism measures appears to be strongly influenced by perceptions of the terrorist threat, 1 U.S.
From page 10...
... Thus the perception of threat might explain why passenger screening and searches both immediately after September 11, 2001, and continuing through 2006 consistently receive high levels of support while, at the same time, the possibility of personal impact reduces public support for government collection of personal information about travelers. The public is also ambivalent regarding biometric identification technologies and public health uses, such as prevention of bioterrorism and the sharing of medical information.
From page 11...
... helaw must advance with the technology to ensure the continued vitality of the Fourth Amendment," Senate Judiciary Committee Report on the Electronic Communications Privacy Act of 1986 (S.
From page 12...
... These possibilities have not gone unnoticed by the U.S. government, which has increased the number of and investment in counterterrorism programs that collect and analyze information to protect America from terrorism and other threats to public health and safety.6 The government collects information from many industry and government organizations, including telecommunications, electricity, transportation and shipping, law enforcement, customs agents, chemical and biological industries, finance, banking, and air transportation.
From page 13...
... Much of the analysis can be automated, a fact that provides some degree of protection for most personal information by having data manipulated within the system and restricted from human viewing. However, at some point, the outputs need to be considered and weighed, and some data associated with innocent individuals will necessarily and inevitably be examined by a human analyst -- a fact that leads to some of the privacy concerns raised above.
From page 14...
... Additional issues arise when information is assembled or collected from a variety of storage sources for presentation to an analysis application. Assembling such a collection generally entails linking records based on data fields, such as unique identifiers if present and available (identification numbers)
From page 15...
... For example, three different kinds of agencies in the United States have some responsibility for combating terrorism: agencies in the intelligence community (IC) , agencies of federal law enforcement (FLE)
From page 16...
... Information on such activities is much more likely to come to the attention of the authorities through tips originating in the relevant neighborhoods or communities or through observations made by local law enforcement authorities. Although such tips and observations are also received in the context of many other tips and observations, some useful and others not, the amount of winnowing necessary in this case is very much smaller than the amount required when the full panoply of normal, innocent activities constitutes the background.
From page 17...
... In contrast, law enforcement agencies identify threats based on behaviors that are specifically identified as criminal (i.e., with the Fourth Amendment requirement of particularity)
From page 18...
... interests is the primary goal of the intelligence community and of federal law enforcement agencies. Prevention of terrorist attacks is necessarily a proactive and ongoing role, and thus it is not necessarily carried out in response to any particular external event.
From page 19...
... . Thus, both counterterrorist and countercrime efforts are likely to depend a great deal on information originating in the relevant neighborhoods or communities or observations made by local law enforcement authorities.
From page 20...
... 1.6.1 Data Mining Under the rubric of data mining techniques fall a diverse set of tools for mathematical modeling, including machine learning, pattern recognition, and information fusion. • Machine learning is the study of computer algorithms that improve automatically through experience.
From page 21...
... The second requisite is the quality of the information collected. Individuals claimed by law enforcement officials to match prints found at a crime scene have sometimes turned out not to match upon further investigation.12 Also, matching names or other forms of record linkage are error-prone operations, generally because of data quality issues.
From page 22...
... Nevertheless, it may be possible to use subject-matter experts to identify discriminating patterns, and one cannot reject a priori the possibility that anomalous patterns might be identified that intelligence analysts would also view as very likely to be associated with terrorist activity. Working collaboratively, signature-based data mining techniques might be developed that could effectively discriminate in counterterrorism between patterns of interest and those not
From page 23...
... However, rather than using the individual as the basic unit of analysis, many techniques may use other constructs, such as the relevant group of close associates, the date of some possible terrorist activity, or the intended target, and then tailor the information retrieval and the analysis using that perspective. To best address a given problem, it may be beneficial at times to use more than one unit of analysis (such as a group)
From page 24...
... In general, there is little doubt about the utility of subject-based data mining as an investigative technique. However, the utility of patternbased data mining and information fusion depends on the availability of a training set and the application to which the techniques are applied.
From page 25...
... To illustrate the government interest in behavioral surveillance, consider Project Hostile Intent, conducted under the auspices of the U.S. Department of Homeland Security's Human Factors Division in the Science and Technology Directorate.
From page 26...
... In addition to the highly desirable true positives and true negatives that are produced, there will be the very troublesome false positives (i.e., a person telling the truth is thought to be lying) and false negatives (i.e., a person lying is thought to be telling the truth)
From page 27...
... For example, the effectiveness of rules that prohibit agents or analysts from disclosing certain kinds of personal information about the targets of their investigations is based on the willingness and ability of those agents or analysts to follow the rules and the organization's willingness and ability to enforce them. While encryption may provide the technical capability to protect data from being viewed by someone without the decryption key, policies and practices determine whether encryption capabilities are actually used in the proper circumstances.
From page 28...
... Regarding source, government collection of personal information is often regarded as different in kind from private collection of personal information, although government is increasingly making use of personal data gathered by private parties. This point is especially significant because laws that restrict government collection of personal information often do 16 National Research Council, Priate Lies and Public Policies: Confidentiality and Accessibility of Goernment Statistics, National Academy Press, Washington, D.C., 1993.
From page 29...
... Effectiveness is a measure of technical performance, and policy makers and government officials responsible for developing, purchasing, deploying, and using information-based programs must make judgments regarding whether a given level of effectiveness is sufficient to proceed with the use or deployment of a given technology, system, or program. Section 1.8.4 addresses false positives and false negatives as essential elements of judging the effectiveness of a program.
From page 30...
... 0 PROTECTING INDIVIDUAL PRIVACY IN THE STRUGGLE AGAINST TERRORISTS BOX 1.1 A Relationship Between Privacy and Trust The National Research Council report Engaging Privacy and Information Technology in a Digital Age (2007) explicitly addresses the relationship between privacy and trust.
From page 31...
... A good example of the impact of technological change on the law is the interpretation of the Supreme Court in 1976 in United States . Miller18 that there can be no reasonable expectation of privacy in information held by a third party.
From page 32...
... Some legal analysts believe that this interpretation regarding the categorical exclusion of records held by third parties from Fourth Amendment protection makes less sense today because of the extraordinary increase in both the volume and the sensitivity of information about individuals so often held by third parties. In this view, the digital transactions of daily 21 Id.
From page 33...
... Government Accountability Office, Personal Information: Agency and Reseller Adherence to Key Priacy Principles, GAO 06-421, Washington, D.C., 2006.
From page 34...
... If all records receive Fourth Amendment protection, treating every record as private, the equivalent of something inside the home, then the government will have considerable difficulty monitoring criminal activity without a warrant. In effect, under this interpretation, the Fourth Amendment would apply much more broadly to records-based and digital crimes than it does to physical crimes, and all in a way that would make it very difficult for law enforcement to conduct successful investigations.
From page 35...
... But these cases are new and may be overturned, and it will be some years before clearer boundaries emerge definitively. 1.8.4 False Positives, False Negatives, and Data Quality29 False positives and false negatives arise in any kind of classification exercise.30 For example, consider a counterterrorism exercise in which it is desirable to classify each individual in a set of people as "not worthy of further investigation/does not warrant obtaining more information on these people" or "worthy of further investigation/does warrant obtaining more information on these people," based on an examination of data associated with each individual.
From page 36...
... One way to reduce the number of false positives significantly is to exploit the fact that terrorists -- especially those with big plans in mind -- are most likely to operate in small groups (also known as cells)
From page 37...
... Improving data quality can thus reduce the rate of false positives and false negatives, but only up to the limits inherent in the imperfections of the model. Since models, for computability, abstract only some of the variables and behaviors of reality, they are by design imperfect.
From page 38...
... Even in well-designed record linkage studies, such as those developed by the Census Bureau, automated matching is capable of reliably matching only about 75 percent of the people (although some appreciable fraction of the remainder are not matchable) , and hand-matching of records is required to reduce the remaining number of unresolved cases.34 The difficulty of reliable matching, superimposed on measurement error, will inevitably produce much more substantial problems of false positives and false negatives than most analysts recognize.
From page 39...
... False positives and false negatives are in some sense complementary for any given database and given analytical approach. More precisely, for a given database and analytical approach, one can drive the rate of false positives to zero or the rate of false negatives to zero, but not simultaneously.
From page 40...
... In the case of the terrorist investigation, it is essentially impossible to know with certainty if a person is a false negative until he or she is known to have committed a terrorist act. False positives and false negatives (and data quality, because it affects
From page 41...
... But this argument is fallacious. There is no reason to expect that false negatives and false positives trade off against one another in a one-for-one manner.
From page 42...
... The threshold consideration of any privacy-sensitive technology is whether it is effective toward a clearly defined law enforcement or national security purpose. The question of effectiveness must be assessed through rigorous testing guided by scientific standards.
From page 43...
... Inasmuch as some programs seek to enable the deployment of very largescale data mining over a larger universe of data than the U.S. government has previously analyzed, the fact that a given program complies with existing law does not establish that such surveillance practice is consistent with democratic values.


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