Unfortunately, I sense some dangerous ambivalence in Kaplan's "Spy surge," an ambivalence that appears to normalize data mining and some data mining practices that are severely flawed.

Kaplan qualifies his general acceptance of data mining by saying that lawful procedures should be followed, but then proceeds to demonstrate how data mining has and follows no law. He says that it's "not trivial" and calls on Congress to investigate, but his statement ultimately lacks conviction and impact and broadly fails to express the imminent danger to civil liberties.

It should be clearer to Kaplan and his readers that the problem with data mining and surveillance is not just about "the current bunch" but about a permanent, absolute increase in potential for abuse. Once the data is organized and ready for analysis, how much work would it take to change a "terrorist pattern" search to become an "activist pattern" search or a "corporate whistleblower pattern" search? And how much work would it take to store and distribute (privately or publicly) the results of those searches? Not much.

Furthermore, he doesn't begin to address certain obvious extensions of "pattern recognition" surveillance, like that the immigrant class faces overwhelmingly greater odds of being under surveillance should something like "foreign contact" be included amongst the criteria for heightened investigation. It's easy to see the inequities that may develop--organized criminals developing illegal businesses within the US that ring few alarm bells, while investigators are seeking warrants for additional surveillance when a blind data mining analysis delivers the phone number of a family with an uncle in Tehran.

Data mining can be useful, but by-and-large, computers aren't interested in people's rights and they are liable to make mistakes. If a data mining effort is indeed anywhere near effective, then it will become easier and easier to see the results of any pattern search as a list of potential criminals than what it should look like in America--a list of citizens and residents that are innocent until proven guilty.