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The Mosaic Theory--A Commentary by David Pozen '07

(This essay originally appeared in the February 28, 2006, edition of the Hartford Courant.)

Critics of the Patriot Act and the National Security Agency's domestic spying have repeatedly sounded the theme of excessive, if not abusive, government secrecy following Sept. 11. Almost no criticism, however, has addressed a major factor driving the post-9/11 upsurge in secrecy: the "mosaic theory" of intelligence gathering.

The theory holds that individually harmless pieces of information, when combined with other pieces, can generate a composite - a mosaic - that reveals national security vulnerabilities. Because of this informational synergy, records that would be unclassifiable in their own right may require protection. President Reagan often warned of KGB mosaic-making, but once he left office the theory receded into obscurity.

And there, for the most part, the mosaic theory remains, even though federal agencies have been invoking it more frequently and aggressively than ever before. When the director of the Information Security Oversight Office remarked recently that he's seen information classified since 9/11 that he's "also seen published in third-grade textbooks," he was alluding to this phenomenon - and implying it has gone too far.

The rise of the mosaic theory, and its consequences for civil liberties, has been most visible in the courts. In the 2003 case Center for National Security Studies vs. Department of Justice, the government used the theory to deny Freedom of Information Act requests on 700-plus people detained in the wake of 9/11; even the detainees' names and reasons for detention were withheld. In North Jersey Media Group vs. Ashcroft (2002), the government used the theory to close off 9/11-related deportation hearings to the public and the press. In ACLU vs. DOJ (2004), the government used the theory to withhold summary statistics about one of the Patriot Act's most controversial provisions.

In none of these cases did the government proffer substantive evidence of likely harms from disclosure. In all of these cases, the government won.

As matters of logic, law and policy, these results (and others like them) are troubling. Logically troubling because judges refrained from scrutinizing the government's arguments on the judges' belief that, as mosaics, they involved especially complex interactions among multiple pieces of information. What this reasoning misses is that information becomes meaningful only by interacting with other information, so that mosaic-making possibilities are not the exception, but the rule.

Legally, courts have failed to follow FOIA's requirements that agencies withhold the minimum amount of information necessary and that risk determinations be made on a case-by-case basis.

The decisions' policy problems cut deeper. When courts permit the government to withhold even the most innocuous-seeming (and politically controversial) items of information without specifying how each item might contribute to a dangerous mosaic, they enable spurious claims and disable counterargument. Understanding this, agencies gravitate to the mosaic theory when they know their case for secrecy is weak.

Yet despite these concerns, there are good reasons why the mosaic theory has made a comeback. At the same time that new technologies have been increasing the volume, accessibility and manipulability of sensitive data, new types of adversaries have been proliferating. The 9/11 attacks brutally underscored the ways in which terrorism and technology have been increasing the scope of mosaic-making threats while decreasing their predictability.

So the mosaic theory is both sensible - indeed, more germane than ever - and readily misused by agencies, leaving courts in a difficult position.

To manage this dilemma, courts can use the tools already available to them. Courts can treat mosaic arguments like any other national security argument - with deference, not acquiescence - and refuse to credit them if overbroad or unreasonable.

Courts should, moreover, consider the flip side of the mosaic theory: Just as the NSA connects the dots for counterterrorism, the public too can mosaic-make, and thereby respond more intelligently to threats. Likewise, courts should consider not only how information technologies might facilitate adversarial mosaic-making, but also how they might combat such activity. Finally, judges would benefit from a new tool, special masters with intelligence backgrounds, when faced with particularly speculative mosaic arguments.

The mosaic theory deserves a central place in information-control policy, but a carefully circumscribed place; there are serious costs to overusing as well as underusing it. Conscientious judges can restore reason and moderation to the theory's use. No one else will.

David Pozen is a second-year student at Yale Law School. His note on the mosaic theory and national security appears in the latest issue of the Yale Law Journal.