To keep Americans safe, various federal officials often say, government agents must have the ability to intercept electronic information, including that crossing the Internet, throughout the United States. (Some believe NSA has been doing that for years, but that is a debate for another day.)

The rationale is the fact that much of the world’s communication crosses channels in the United States at some point. The government figures the situation presents a great opportunity to listen in on communications to and from supposed terrorists who may actually be outside the United States.

The obvious problem behind such legislation is that allowing such listening in, particularly without the establishment of probable cause, will likely lead to abuse. Indeed, the object of the executive branch has been to acquire the legal means to conduct warrantless surveillance, something that would shock and horrify the framers of our government.

The fact of the matter is this: the unaccountable surveillance is unlikely to thwart terrorist activity because there is simply too great a volume of information. Breaking eggs when one still won’t get an omelet is just not that smart. There is no scenario under which one is very likely to catch terrorists by examining the routine communications of the U.S. public, or the communications that could be to or from someone in the United States, unless it occurs via dumb luck. The reason: too little signal and too much noise.

It is like finding a tan piece of hay in a gigantic stack of yellow hay — a stack of hay that gets renewed each day. Norwegian professor Floyd Rudmin, using a mathematical construct to determine probability called Bayes’ Theorem, concluded:

The probability that people are terrorists given that NSA’s system of surveillance identifies them as terrorists is only p=0.2308, which is far from one and well below flipping a coin. NSA’s domestic monitoring of everyone’s email and phone calls is useless for finding terrorists.

Simply put, monitoring every phone call, every e-mail message, and every instant message flowing through America will not result in a reasonable reduction of the risk of terrorist attacks. Unless there are a lot more terrorists in the United States than even the most pessimistic estimates would suggest, increased monitoring will result in little else but loss of privacy and increased expense. (It would also result in a veritable cornucopia of business for security firms and technology providers, all paid for with taxpayer money.) Not to mention that, assuming the terrorists aren’t complete morons, they can simply and easily bypass the electronic surveillance altogether by resorting to old-fashioned spy gadgets like packages containing microdots.

Finding a terrorist with either the old rules or the expanded rules is less effective than just randomly stopping cars and flipping a coin. Given that level of discrimination, it would seem all the more important to have a feedback mechanism in place to correct for errors. Certainly if searches and/or warrants are obtained improperly or lead to abuse, those infringed upon and those who might later be infringed upon deserve to know about it. The original structure of the FISA, and the recurring theme in every attempt to widen its reach, is in direct contradiction to any such feedback mechanism. The Electronic Privacy Information Center clarifies the existing law:

The records and files of the cases are sealed and may not be revealed even to persons whose prosecutions are based on evidence obtained under FISA warrants (except to a limited degree set by district judges’ rulings on motions to suppress). There is no provision for the return of executed warrants to the FISC, for certification that the surveillance was conducted according to the warrant and its “minimization” requirements, or for inventory of items taken pursuant to a FISA warrant. [Emphasis added.]

Having a secret court make a secret ruling about probable cause is one thing, but having no mechanism to determine if the ensuing action — action taken by those who obtained the warrant — was appropriate makes the whole process rather, well, needless. If one asks for authorization to do one thing, but does another, and is never asked to verify if what he did was done pursuant to the previous instructions, he might as well not have asked in the first place.

Presidential aspirant Ron Paul has noticed the shaky ground upon which this legislation is based. He stated on the floor of Congress:

We must remember that the original Foreign Intelligence Surveillance Act was passed in 1978 as a result of the U.S. Senate investigations into the federal government’s illegal spying on American citizens. Its purpose was to prevent the abuse of power from occurring in the future by establishing guidelines and prescribing oversight to the process. It was designed to protect citizens, not the government. The effect seems to have been opposite of what was intended. These recent attempts to “upgrade” FISA do not appear to be designed to enhance protection of our civil liberties, but to make it easier for the government to spy on us!