By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
Thanks to a May 4, 2013 Glenn Greenwald piece (http://www.guardian.co.uk/commentisfree/2013/may/04/telephone-calls-recorded-fbi-boston) my attention has been drawn to Stellar Wind. Stellar Wind is a much more evocative phrase for me than warrantless wiretapping – it sounds in the haunting Stella Blue of the Grateful Dead and conjures up science fiction images of all the particles emanating from the Sun due to its energy. Stellar Wind is about capturing the digital equivalent of those solar particles – all those particles – and storing them for analysis. It is the code name for the capturing of all domestic communications by the NSA and its ambition appears to be truly extraordinary as captured in this March 15, 2013 Wired article (http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/all/1 – The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say)).
Apparently, contrary to what we were told back in 2001, the government has been in fact gathering all domestic communications since at least 2001 using tools developed in its gathering of international communications and enhancing them. Also, when legal issues finally came to a head the FISA 2008 amendments solved the legal problem.
My understanding is that anything is to be picked up in the maw of the Stellar Wind and stored. Then, tools for boring into that everything included space are being developed to breakthrough even the most encrypted communications at 128 bit, 192 bit and 256 bit encryption. As the tools become more powerful and with access to greater amounts of data telltale paths are detected to be used to decrypt what is not out there in the open. The tools seem more sophisticated than what the words “data mining” cover as described by the tools from Narus and Palantir and other companies that provide “connecting the dots” capacity for analysts of a new level.
Storing everything is not considered illegal and so all is stored. The state intersection with citizen “rights” only comes to the fore when the state wants to look at the past data path of someone that has come to their attention for some reason. And the data paths for everyone are there stored in these massive data storage devices – sitting like silent sentinels – saving everything in case a path of someone in that everything becomes of interest.
Analysts generate the paths as described in this wonderful video of Palantir (http://www.palantir.com/2012/07/palantir-legal-intelligence-analyzing-the-enron-emails/ – Palantir Legal Intelligence: analyzing the Enron emails). This video is well worth the watch as it describes an impressive to the layperson process of sifting data in various datasets to look for connections and networks between people. The graphic manner in which these networks of people are presented as hubs and spokes is a visual triumph at having one understand intuitively the ostensible interrelations between persons through discrete data across discrete domains.
One can imagine these types of graphic images helping form visual impressions of how “connected” one person is to another. The correlation between and causation of the direction and intensity of these connections might be a bit unclear, but the tie that binds is nudged into the open through the exploitation of all that is stored – stored forever.
Knowing that what one does on the phone (truly a “smartphone” now), on the computer, ipad and every digital medium is being captured and stored forever is a valuable piece of information for the citizen. Does this reality of being stored have a similar effect to the one of being observed? Here – in a Phillip Dickian kind of sense – the observation of one’s stored past is only in a future period in which one is selected for observation because of curiosity about what one has done. The probability of such selection for observation is less than one for the vast number of people in the system, but that probability is continuously updated as the moving path of analysis for others and search for network connections changes the “interesting” level for any given person. Maybe one can also think of each of us as having a discounted present value of probability of observation based on the stored potential stream of connections that make us more interesting over time divided by some measure of the value of time.
Adding this kind of thought or thinking to my everyday life has one effect that seems certain – my sense of what it means to be free is altered by my knowing that what I do in the digital space is stored forever. Does this mean that I self-censor because of that new reality? To some extent no doubt, and more for some than others.
But, it also asks of me the terrible question that if I am free, shouldn’t I act free? And, its corollary which is that if I am free, why do I not act free? Or maybe, when do I not act free? And this leads to the question as to what I mean by the word free? Not freedom now but what it means to be free now?
I do not have any answers on this, but I am nagged by the implications of what I am reading and being brought to see as an ordinary citizen coming to terms with the meaning of his freedom. For what does “Free at last!” mean in this kind of freedom?