my nerves are bad to-night

Like Judge Leon, Judge Pauley spends considerable time on the question of standing: does the statutory regime underlying the data collection program permit citizens to challenge it?  Also like Judge Leon, he says that it does not.  In other words – and this is something I want to discuss in a future post – the only sort of challenge a citizen can make to the data collection program is a constitutional one.  That said, the way Judge Pauley characterizes the standing question is perhaps worth a remark here: he straightforwardly claims that there is no way the analytics part of the program can proceed without first having all the metadata at hand.  As he says, “there is no way for the government to know which particle of telephony metadata will lead to counterterrorism information”.  This is the data/information distinction at work: the data by itself (or in a vacuum) is meaningless – and may even be meaningless forever – but you cannot even know whether it will rise to the level of information until after you run the analytics (hence my claim that privacy arrives too late).  In this, I think, big data is charting new territory, insofar as older kinds of surveillance did not extensively collect material that was not obviously meaningful in some way or another…

In any case, this generalization of this principle isn’t encouraging, since it basically says that all data needs to be available for collection, since we can never know what data is going to be meaningful.  This would also be true for material on the information side of the divide, since the information that someone regularly visits the home of a known drug dealer might yield totally different information if treated as a data point in the NSA’s analytics.  Once the analytics are what turn data into information, I think it follows straightforwardly that it will be virtually impossible to establish a (non-arbitrary) limiting principle on data collection.  read more

PHOTOGRAPH: [unattributed]

Tagged: 'i've got nothing to hide' and other misunderstandings of privacy, american civil liberties union, big data, dan solove, data-collection programs, data/information distinction, fourth amendment, gordon hull, metadata, michel foucault, national security agency, privacy, richard j leon, smith v maryland, supreme court, surveillance, william h pauley