August 7, 2003

August 7, 2003 | Executive Summary on Department of Homeland Security

Executive Summary: Proposals for Implementing the TerrorismInformation Awareness System

The Terrorism Information Awareness (TIA) program under development by the Defense Advanced Research Projects Administration at the Department of Defense has generated substantial controversy. Much of that controversy is unwarranted, and concerns that the technology will be abused are speculative, at best. A number of analogous oversight and implementation structures already in existence can be borrowed and suitably modified to control the use of the new technology.

As six former top-ranking professionals in America's security services recently observed, we face two problems--both a need for better analysis and, more critically, "improved espionage, to provide the essential missing intelligence." In their view, while there was "certainly a lack of dot-connecting before September 11" the more critical failure was that "[t]here were too few useful dots." TIA technology can help to answer both of these needs. Thus, TIA can and should be developed if the technology proves usable.

The technology can be developed in a manner that renders it effective, while posing minimal risks to American liberties, if the system is crafted carefully, with built-in safeguards that act to check the possibilities of error or abuse. In summary they are:

  • Congressional authorization should be required before data mining technology (also known as Knowledge Discovery (KD) technology) is deployed;
  • KD technology should be used to examine individual subjects only in compliance with internal guidelines and only with a system that "builds in" existing legal limitations on access to third-party data;
  • KD technology should be used to examine terrorist patterns only if each pattern query is authorized by a Senate-confirmed official using a system that: a) allows only for the initial examination of government databases, and b) disaggregates individual identifying information from the pattern analysis;
  • Protection of individual anonymity by ensuring that individual identities are not disclosed without the approval of a federal judge;
  • A statutory or regulatory requirement that the only consequence of identification by pattern analysis is additional investigation;
  • Provision of a robust legal mechanism for the correction of false positive identifications;
  • Heightened accountability and oversight, including internal policy controls and training, executive branch administrative oversight, enhanced congressional oversight, and civil and criminal penalties for abuse; and
  • Finally, absolute statutory prohibition on the use of KD technology for non-terrorism investigations.

Critics of TIA are wrong to exalt the protection of liberty as an absolute value. That vision rests on an incomplete understanding of why Americans formed a civil society. As John Locke, the seventeenth-century philosopher who greatly influenced the Founding Fathers, wrote: "In all states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from the restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists." Or, as Thomas Powers recently wrote: " In a liberal republic, liberty presupposes security; the point of security is liberty." Thus, the obligation of the government is a dual one: to protect civil safety and security against violence and to preserve civil liberty.

That goal can be achieved. To be sure, it is a difficult task. It is far easier to eschew the effort. But failure to make the effort--failure to recognize that security need not be traded off for liberty in equal measure and that the "balance" between them is not a zero-sum game--is a far greater and more fundamental mistake. Policymakers must respect and defend the individual civil liberties guaranteed in the Constitution when they act, but they also cannot fail to act when we face a serious threat from a foreign enemy.

Indeed, resistance to new technology poses practical dangers. As the Congressional Joint Inquiry into the events of September 11, pointed out in noting systemic failures that played a role in the inability to prevent the terrorist attacks:

4. Finding: While technology remains one of this nation's greatest advantages, it has not been fully and most effectively applied in support of U.S. counterterrorism efforts. Persistent problems in this area included a lack of collaboration between Intelligence Community agencies [and] a reluctance to develop and implement new technical capabilities aggressively . . . .

It is important not to repeat that mistake.

Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies