Government Pattern Analysis: Securing Terrorists While Preserving Privacy? Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP Congressional Internet Caucus March 20, 2003

Overview n Total Information Awareness Program – Admiral Poindexter n CAPPS II Program (airline passengers) – Transportation Safety Admin. n Legal overview n Our other speakers

Historical Context n 1960s and 70s -- excesses revealed n Surveillance of MLK, Jr. n Infiltration of political groups – FBI agents in KKK to Black Panthers, including participating in bombings, etc. – Fringe groups? Large fraction of delegates to 1972 Democratic National Convention under surveillance – Blackmail files on political officials

The Legal Reaction n Title III (1968) -- wiretaps only under strict, federal standards n Privacy Act, no secret dossiers n Foreign Intelligence Surveillance Act, 1978 n Right to Financial Privacy Act, 1978 n Other laws since – Govt. often needs subpoena, etc., to get data

Does the Constitution Limit Searches for Pattern Analysis? n Generally, no. n 4th Amendment limits searches of your person, places, papers, and effects n But most key records today held by outside parties n They can consent to give the data to government n Only statutes limit this disclosure.

What Has Changed Now? n Data searching so much better – Everyone has a mainframe – All connected over the Internet n September 11 – USA-PATRIOT Act and new government powers to get records n The events of this week

Todays Panel n Technology -- what can we expect from pattern analysis? n Advantages -- what pattern analysis should we choose to do? n Disadvantages -- what are the privacy and other competing concerns?