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Article
Data Mining and Counter-Terrorism: The Use of Telephone Records as an Investigatory Tool in the "War on Terror"
I/S: A Journal of Law and Policy for the Information Society (2008)
  • Bryan D. Kreykes
Abstract
In December, 2005, media outlets reported the existence of a secret government program aimed at tracking terrorist activity through the use of telephone records. As part of that program, the National Security Agency (NSA) and Federal Bureau of Investigation (FBI) reportedly demanded that telephone companies turn over confidential customer records to government agencies. The program, commonly referred to as “data mining,” involves scrutinizing trillions of call records searching for suspicious patterns of communication between domestic phone numbers and those of suspected foreign terrorists. Once a link between a suspected foreign terrorist and a domestic telephone number is found, records of calls originating from that number are examined. The records of recipients of those calls are then examined for signs of communication with suspected terrorists. Due to the extreme secrecy of the program, both its legality and its statutory basis remain unclear. This paper examines the various statutory schemes under which the NSA and FBI data mining program may have been conducted. It begins by summarizing the process of data mining and analyzing its usefulness as a counter-terrorism tool. It then discusses the general statutory prohibition on telephone companies revealing customer records and the statutory exceptions to that ban. The paper then addresses the incentives faced by phone companies under the current statutory scheme and the resulting impact on consumer privacy expectations. Under federal law, telephone companies that reveal customer records pursuant to national security requests by the NSA, FBI, and other agencies are insulated from the liability based on those revelations. That insulation from liability, coupled with the threat of adverse government action, creates an overwhelming incentive for telephone companies to disclose records when served with a request. This article concludes by arguing that data mining leads to a large number of false positive identifications of potential terrorists which, in turn, must be discredited using more traditional law enforcement techniques. Due to the time and manpower required to track down those false positive identifications, this article concludes that data mining is an inefficient use of the government’s limited resources, and recommends traditional law enforcement techniques as a more effective means of pursuing the domestic portion of the “War on Terror.”
Keywords
  • Counter-Terrorism,
  • Wiretapping,
  • Data Mining,
  • Telephone,
  • Records,
  • Suspicion
Publication Date
Fall 2008
Citation Information
Bryan D. Kreykes. "Data Mining and Counter-Terrorism: The Use of Telephone Records as an Investigatory Tool in the "War on Terror"" I/S: A Journal of Law and Policy for the Information Society Vol. 4 Iss. 2 (2008)
Available at: http://works.bepress.com/bryan_kreykes/3/