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Author's Note: Just as I was finishing this diary on what I believed formed the legal rationale used to justify the NSA metadata collection program, The Guardian published a leaked 2007 DoJ memo advocating for the expansion of surveillance powers. I decided to publish anyway. My analysis largely conforms with that in the memo, so I hope it adds to your understanding of the memo and why this rationale, as it is applied to the NSA, is so dangerous.
The recent disclosure of NSA data mining programs collecting massive amounts of information on nearly all American citizens from the nation’s telephone and internet companies without a warrant shook many Americans’ conception of jurisprudence and our legal system. It exposed an immense gulf between what you and I consider private and what the courts and our government have determined is private.

Whenever this story fully plays itself out, what may be most surprising to the public isn’t the scale of the program itself, but rather that the warrantless collection of data for this program is considered legal in the first place. Members of Congress and the Administration repeatedly stress that these programs operate under court supervision. They claim the programs are legal because the collection of metadata does not require a warrant. Metadata, for the purposes of the Verizon court order, consists of call routing information like originating and terminating phone numbers, cell tour ID, calling card number, and duration of the call. Since they claim that the programs are not collecting the underlying content that creates the metadata (i.e. not recording the conversation), the government insists that a subpoena or FISA court order is sufficient.

This focus on business records by public officials suggests that the FBI and the NSA are relying upon a legal rationale known as the Third Party Records Doctrine to claim legitimacy for its mass collection of metadata without a warrant. The ABA Journal describes the doctrine thusly:

In essence, the doctrine holds that information lawfully held by many third parties is treated differently from information held by the suspect himself. It can be obtained by subpoenaing the third party, by securing the third party’s consent or by any other means of legal discovery; the suspect has no role in the matter, and no search warrant is required.
The basis for the Third Party Records Doctrine can best be understood by examining three Supreme Court cases – Katz, Miller, and Smith – that help shape the modern legal conception of privacy in the United States. Each case deals with expectations of privacy and whether a warrant or a subpoena is sufficient to collect evidence. I briefly explain these cases on the other side of the fold and lay out why, because of modern technology, this legal rationale needs a radical change.

Katz v United States (1957) revolved around the question of Fourth Amendment protection against warrantless wiretapping of a public phone. In this case, the Supreme Court established a new test - a “reasonable expectation of privacy” – that effectively expanded Fourth Amendment protection beyond the previous standard of trespass. It held that, “Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The ‘trespass’ doctrine of Olmstead v. United States and Goldman v. United States is no longer controlling.” The Court recognized that even in a public setting there ought to be protected spheres of privacy.

However, in United States v Miller (1976), a case focused on whether a subpoena to a bank was sufficient for the government to obtain an individual’s bank records, the Court narrowed the potential scope of Katz by describing certain activity where no expectation of privacy can be presumed to exist. Miller established that documents such as checks, deposit slips, and bank account statements represent business records and contain information voluntarily shared in the course of business. They ruled that these were not an individual’s private papers, and therefore, not due Fourth Amendment protection. It held that, “The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” By sharing information with a third party in a business transaction, the Court claimed, individuals give up their reasonable expectation of privacy, and, along with it, their Fourth Amendment rights in those situations. A subpoena was deemed sufficient; no warrant was required to obtain business records. This is the basis on which the government claims metadata are business records for the purposes of the NSA programs.

Three years later, the Court would further restrict spheres of privacy. Smith v Maryland (1979), a case revolving around a subpoena to a phone company for a log of dialed phone numbers, added a second prong to the Katz test. The Court held that satisfying the Katz test of a individual’s reasonable expectation of privacy wasn’t enough to guarantee Fourth Amendment protection if society itself would not consider that expectation reasonable. “Even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as ‘reasonable.’ When petitioner voluntarily conveyed numerical information to the phone company and ‘exposed’ that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information.” This second prong to the Katz test serves to further restrict Fourth Amendment protection by requiring society to confirm as reasonable your own expectation of privacy.

Where Katz initially expanded Fourth Amendment protections by requiring the government to obtain a warrant beyond its trespass onto private property and into a more public sphere, Miller and Smith limited much of that gain. They effectively lowered the burden on the government to obtain court approval to collect business records. Although court supervision occurs with both warrants and subpoenas, the level of judicial scrutiny applied to a warrant is much higher than that applied to a subpoena. Search warrants require probable cause, that sufficient information exists at the time of request for a warrant that would lead a prudent person to believe that evidence of a crime exists in the place to be searched. Subpoenas, on the other hand, primarily require the request to be relevant to an investigation and reasonable in scope.

Despite that lower burden, it appears the FISA court went out of its way to render meaningless the hurdles of being relevant and reasonable in granting approval to obtain metadata for the NSA programs. Relevance seems to be satisfied merely by the fact that some terrorist, somewhere out there, at some point in time, used a phone, an internet connection, or a bank. Reasonability seems to be satisfied by the fact that NSA’s computing power and data storage capabilities allow for a scope of billions of records daily and its communications infrastructure permits the timely transfer of those records.

How can the FISA court justify permitting the collection of data on over 95% of the population? The rationale for the Third Party Records Doctrine grew out of cases that targeted specific individuals for suspected crimes. It isn't clear at all to me that the FISA court's leap from targeting individuals to targeting an entire population is justified. In this highly digitized society which we live, the FISA court effectively removed any limit on the government’s ability to amass surveillance data on citizens. When Miller and Smith were being decided, the government was forced to prioritize its surveillance activities. Data collection methods were still quite laborious and placed a restraint on the government’s resources. But as more records became digitized and the cost of data storage and computing power fell, this constraint disappeared. Seemingly, the biggest restraint government faces today is imagination. We have fallen off the slipperiest of slopes.

Justice Sonia Sotomayor recognized this in her concurring opinion in United States v Jones (2012). While she concurred with the majority's opinion and the narrow rationale the majority chose to decide the case, she felt strongly enough about an encroaching surveillance state that she added:

[P]hysical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice Alito that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.”

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.”

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,”

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

In light of the FISA court permitting such a broad data collection program, it is time to reset society’s expectation of privacy if we wish any privacy to remain. At a minimum, it is time to put Smith to the test. While the second prong of the Katz test added by Smith has, thus far, restricted Fourth Amendment protections over time, a dedicated campaign to increase society’s expectations of privacy would force the Supreme Court to use Smith to broaden Fourth Amendment protections again.

The Supreme Court would have you believe privacy exists in a binary state, you either have it or you don’t. But our lives are not lived that way. We understand and practice privacy by degree every day. It is practiced by the young couple who shares with a few close friends that they are pregnant, but withholds that information from their own family until the risk of miscarriage subsides. It is practiced by the philanthropist donating a large sum to a charity, but asks the board to let her donation remain anonymous. It’s why we share lots of intimate information with a confidant and much less so with a gossip. Limiting the sphere of people with whom you share information is itself a form of privacy.

I'm not one given to hyperbole, but the application of the Third Party Records Doctrine to all business metadata without regard to suspicion destroys all concepts of privacy. Without privacy, does a presumption of innocence exist?

There is no way to opt out of our digitized society. And I dare say, if you attempt it, that will be considered suspicious activity and leave you open for further surveillance. As it stands today, privacy only exists in the never recorded thoughts in your head, an absolutely unreasonable standard indeed.

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Comment Preferences

  •  yes. (10+ / 0-)

    and yes, indeed.

    @Hugh: There is no Article II power which says the Executive can violate the Constitution. * Addington's perpwalk? TRAILHEAD of accountability for Bush-2 Crimes.

    by greenbird on Thu Jun 27, 2013 at 06:49:15 PM PDT

  •  One of Many Ways in Which Moving Spaces and (17+ / 0-)

    functions of culture & society to be carried out by businesses makes it trivial for our system's rights, protections and responsibilities to be dispensed with.

    There's no way our system can survive or remain democratic with so much of society being commercial products produced and distributed by big corporate forces.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jun 27, 2013 at 06:55:38 PM PDT

    •  Every action... (21+ / 0-)

      ... now leaves digital footprints.

      Where surveillance once meant observing an action in real-time, the government now has the ability to look back over years (and soon decades) to "watch" you in the past.

      •  More and More Our Values and System (4+ / 0-)
        Recommended by:
        D Wreck, Dumbo, radical simplicity, caul

        become fish-bicycles.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

        by Gooserock on Thu Jun 27, 2013 at 08:30:03 PM PDT

        [ Parent ]

      •  Just think. (4+ / 0-)
        Recommended by:
        D Wreck, joanneleon, blueoasis, lotlizard

        All those people who sent PGP-encrypted emails to other people.  Some day the computing power or the algorithm will be there for the government to go back and decrypt all those old emails, no matter how old, and have a good whack-off over them.

      •  They think they're watching the future (5+ / 0-)

        They are using the data as a timeline for a subject to predict what they will do in the future.  I'm not buying the argument that they need a warrant to do this to a citizen.  I'm willing to rely on good old police work when it comes to preventing of solving crimes.  I'm not willing to stop being who we were before 2001.

        Shine like the humblest star.

        by ljm on Thu Jun 27, 2013 at 09:42:34 PM PDT

        [ Parent ]

        •  Pre-crime (11+ / 0-)

          and that's not just science fiction anymore.

          Signature drone strikes are pre-crime assassinations.  They don't even know who these people are. They exhibit behaviors that terrorists tend to exhibit, or exist in places where terrorists tend to be, or things like that.  We don't know who they are or if they represent a threat to us.  It's a prediction that they might become a threat, and we kill people for that.

          I will never understand why this country is not up in arms about that.

          But then you have people like a member of my extended family, who, when I talked about how women and children are getting blown up in some of our drone strikes said: "Well they were going to grow up to be terrorists anyway".  

          It took my breath away.  I wondered how many people think like that.

          That's a form of justification for pre-crime assassination.

          What happens when your behavior is determined to be terrorist behavior and the criteria are changed?

          "Justice is a commodity"

          by joanneleon on Thu Jun 27, 2013 at 10:11:02 PM PDT

          [ Parent ]

    •  Our digital rights haven't been worked out yet. (4+ / 0-)
      Recommended by:
      D Wreck, congenitalefty, blueoasis, caul

      There's a mythology that the cyber world is separate from the  "real" world.  
      From The Economist.  

      Our ideological sympathies are not good predictors at this point of how we feel about issues of digital privacy and electronic freedom. The fact that these issues don't have a clear ideological colouration yet is important because they are among the most crucial issues of the 21st century. They are crucial because our identities and social selves, in this century, increasingly reside online. They are crucial because money, in this century, increasingly accrues to holders of intellectual property, particularly to those who control the ways we engage in online commerce—the very same companies (Google, Yahoo, Apple, Verizon) that hold the databases which the NSA accesses via PRISM. In this century, digital knowledge is the key to both property and power.
  •  Setting aside the NSA program as a whole, (11+ / 0-)

    the issue comes down to:

    19th and 20th Century laws, 21st Century tech.

    Sotomayor said as much herself--they are using antiquated precedents to rule on technologies that are so far beyond what these original rulings covered.

    Part of it lies in the regulation of internet commerce and information--that is, what are the IPs and the companies allowed to KEEP.

    Part of it also lies in seriously redefining, perhaps legislatively, what things we send over the internet we have a "reasonable expectation of privacy" about.  Is a browser history as important as a Social Security or credit card number, for instance?  And with the transition to electronic medical records, do the HAAMP laws cover the collection of that data as well?

    And so on.

    And on the classified note, one would hope that the algorithms used to sift the metadata for the red flags are comprehensive and narrow enough so that they have a high rate of accuracy.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Thu Jun 27, 2013 at 07:01:05 PM PDT

  •  Everything in my daily life creates metadata (16+ / 0-)

    The GPS phone in my pocket, the GPS in the 3G tablet, my truck has OnStar with a GPS (that even without a subscription plan has a human answer if my kid pushes the button), my household computer, my cable boxes, my gas, electric and water meters.

    If you don't think the metadata can paint an accurate picture of who you are and what you do just answer this question...when was the last time you cleared the cache in your browser on any of the above?

    If you think nobody knows you better than your spouse, think again.

    Your computer has a fingerprint, called a MAC address, that can be indexed to the ISP and identify you in real time. Unless you have been using a Tor-based browser or some other obfuscation, that address has been tracked at EVERY encounter since this BS started.

    Multiply this by how many devices, credit cards, calls, and locations you use these devices and you start to see the scope of how much is gathered on you daily.

    Big Brother has been here a while now.

    If we don't revise laws (gun, communications, commercial banking) to come on par with modern society, then they will continue to use the "unregulated aspects" to screw us.

    Another flaw in the human character is that everybody wants to build and nobody wants to do maintenance. Kurt Vonnegut

    by ToKnowWhy on Thu Jun 27, 2013 at 07:28:11 PM PDT

    •  And don't forget the fine print on all those (1+ / 0-)
      Recommended by:
      D Wreck

      Facebook and other site contracts, which you and I generally don't read but click to accept, and thereby open the doors to whatever that site can collect, and use for profit. And therefore make available under the cases cited because the systems are designed to collate and further disseminate to third parties that information. It isn't an accident that Facebook is compiling and selling commercially useful information which it derives from those using facebook, which makes the information more readily available.

      What, by the way, is the date of this alleged DOJ memo and who wrote it? I don't see that in the diary.

  •  this collection cannot be to track (10+ / 0-)

    terrorists.  i simply do not believe it.  in any case, i would take my chances on a plane or at school rather than live under these conditions.

    the thoughts in my head indeed.

  •  Why is first graf in blockquotes? Who (1+ / 0-)
    Recommended by:
    D Wreck

    is speaking there? Confusing.

  •  This is an outstanding post. (9+ / 0-)

    During the early years of digital recordings –when I made my living in that business– there was a free-for-all aspect to what constituted a copy. The laws simply had not caught up with the technology.

    Similarly that is the case here with eavesdropping and data strip-mining.

    Aside the privacy issue here, which you have detailed quite well, there is the jurisprudence angle to address. This aspect of unwarranted data mining makes me very angry.

    Consider a secret court whose deliberations are secret and they weigh secret evidence and issue a decision, that is in turn secret, and whose interpretation among the executive is secret.

    For the accused, what is the difference between that and a medieval star chamber?

    Laws and stringent oversight need to be brought into the modern age. And if that means that parts of the grifter Military Industrial Surveillance Complex apparatus is dismantled – then fine.

  •  Alito thinks we'd accept a trade (9+ / 0-)

    of privacy for security?  Seriously, where did W find this guy?  We're the United States.  We don't accept a trade of privacy for security.  We had a war over that in 1775 or there abouts.  The people had lots of issues with tyranny in the day and where do unelected judges get off taking that away from "the people?"  We're getting ready to celebrate Independence Day.  I'm wondering 'independence from what?"  Maybe some SCOTUS judges shouldn't be there for a lifetime appointment.  If they're willing to trade the constitution for security, perhaps they won't have a problem with impeachment.  They took an oath to defend the constitution.  They aren't doing that.

    Shine like the humblest star.

    by ljm on Thu Jun 27, 2013 at 08:37:23 PM PDT

  •  What many don't realize about cell metadata... (12+ / 0-) that it's, for all intents and purposes, a tracking device of all of your movements. And, we're talking about a reality where the government now keeps five year's worth of this data on virtually all cellphone owners in the U.S.

    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Thu Jun 27, 2013 at 08:39:11 PM PDT

    •  Bob, that's what I want to know more about too. (7+ / 0-)

      I posted about it below before seeing your comment.  

      Are they storing all that info on all of us?  

      It won't be long, if it's not available now, for them to store all that information on everybody in the world, a lifetime of pinpoint locations and movements and times.  That's worse than Big Brother.

      •  What I do know (7+ / 0-)

        is that there are a lot of people now taking the batteries out of their phones when they don't want to be tracked, or don't want to risk some law enforcement person monitoring them by hacking the phone and turning on the microphone.

        I didn't  get to read it yet but I caught a snippet about how Snowden asked people who came to meet with him to refrigerate their phones? Was that just some whacked teaser line for a story or something? I haven't looked into it further yet.  

        "Justice is a commodity"

        by joanneleon on Thu Jun 27, 2013 at 10:24:00 PM PDT

        [ Parent ]

      •  Guardian article 6/21 says the content collected (8+ / 0-)

        is by far the larger protion than the metadata.

        I missed it if there were any big diaries on this article, it certainly seemed to spell out that exactly the content was being collected.

        accessing the stored content is just a matter of the ability to weasel word, there are no technological problems with it except size, which they seem to also have at least begun to master.

        I see the bigger real problem for activists and all citizens as being at the local levels with the Fusion Centers.
           No local PD would ever resist such a temptation as to have access to this data. No business interest could resist if they had a need...whether for simple security screening, job applications, or fighting negative PR or effecting suggested legislation or political interests...routinizing access thru the Fusion Centers is going to be the way this problem engulfs us all I think.

        I believe they are currently being given access now, all the LEOs and DAs have to do is ask nicely ...I think.

        What are the legal constraint workarounds..... how has the invention of these Fusion Centers reduced, as it surely has, our privacies?

        This machine kills Fascists.

        by KenBee on Thu Jun 27, 2013 at 11:12:26 PM PDT

        [ Parent ]

        •  Whatever the legal equivalent of "open sesame" is. (2+ / 0-)
          Recommended by:
          KenBee, Dumbo

          People ought to know how these things work by now.

          What's that saying by Yogi Berra? "In theory there is no difference between theory and practice. In practice there is."

          In theory, there are checks and strict oversight and transparency and guarantees.

          In practice, all somebody has to do is make the right noises, have the right form rubber-stamped, and it's "open sesame" time.

          The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ☮ ♥ ☺

          by lotlizard on Fri Jun 28, 2013 at 04:56:38 AM PDT

          [ Parent ]

    •  And yet (5+ / 0-)

      that question has been asked directly in a hearing, about whether geolocation data is included in the telephone metadata, and the answer was a definite "no".  

      I don't believe that.

      They often talk about how what the govt. is getting is the same data that's on your phone bill.  We know that geolocation data is in the transaction data the telecom companies store.  Why don't they put that geolocation data on your bill?  I haven't looked at an actual cell bill in quite awhile, so maybe it's on there now?  It used to contain only a destination location, right?  And not GPS coordinates.

      Anyway, during that hearing, I was watching and also watching the liveblogging going on via Twitter and I remember seeing a tweet from emptywheel asking something like "well then why do you ask for the routing information!?"

      I think she was referring to a FISA order.  Well, I do hope that within this package of documents from Snowden there is some more definitive information about whether cell phones are being used as tracking devices.  I also want to know if they were being used that way before that fairly recent Supreme Court decision about tracking people.

      "Justice is a commodity"

      by joanneleon on Thu Jun 27, 2013 at 10:21:26 PM PDT

      [ Parent ]

      •  Joanne, the routing information IS included... (5+ / 0-) the metadata for every call. It's only available for "surveillance requests" of the call data, NOT for "business requests" of the call data, as this post from TechDirt infers from just three days ago! (You'll get a sick chuckle out of this piece.)

        The overall situation with cellular technology is actually much worse than this, however.

        This is old news, frankly. Here's A LINK and an excerpt from an article from ABC News, from 2006!

        Cell phone users, beware.  The FBI can listen to everything you say, even when the cell phone is turned off. A recent court ruling in a case against the Genovese crime family revealed that the FBI has the ability from a remote location to activate a cell phone and turn its microphone into a listening device that transmits to an FBI listening post, a method known as a "roving bug."  Experts say the only way to defeat it is to remove the cell phone battery. "The FBI can access cell phones and modify them remotely without ever having to physically handle them," James Atkinson, a counterintelligence security consultant, told ABC News.  "Any recently manufactured cell phone has a built-in tracking device, which can allow eavesdroppers to pinpoint someone’s location to within just a few feet," he added....
        (This is why Snowden had everyone put their cellphones in a refrigerator, when he met with them and as it was reported the other day. This is pretty much common knowledge within the tech crowd, too.)

        That being said, I also know the location data is included in smartphones for a variety of other reasons, such as Marcy Wheeler and PBS note...

        From Marcy Wheeler at the Guardian on June 13th…

        ...Landlines include location information. But with cell phones, the same location information necessary to route a call effectively provides a rough idea of where a person is even as they move from place to place (map functions on smart phones, as well as a lot of applications, rely on this data). Thus, the geolocation available as part of cell phone metadata provides a much better idea of where a person goes and what they do than location data for a landline tied to a person's address...
        Most smartphones, nowadays, are established to receive and transmit Location-Based Services (“LBS”), and location-based data. (As noted above, and in the links in this paragraph, if you make a call or even take a photo with a smartphone, the location metadata is included with it! And, many ad-related products are now being created and brought to market by developers which piggyback on that (i.e.: Walk within 100 ft. of a given store? You’ll get couponing and related texts/emails, back, in real time, etc. I work with some folks that have worked on these types of projects over the past few years, too.)  That’s because cellphones include the geographic location of the user in their metadata. (See THIS LINK FROM PBS, which is a bit outdated; from 2011. Smartphones have come a long way in the past couple of years, too!)

        "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

        by bobswern on Fri Jun 28, 2013 at 01:18:30 AM PDT

        [ Parent ]

  •  Great diary. (3+ / 0-)

    Want to read it and the DOJ opinion together -- but many interesting points here.

    Thank you.

    Send your old shoes to the new George W. Bush library.

    by maxschell on Thu Jun 27, 2013 at 08:53:00 PM PDT

  •  One thing I don't see mentioned in these (6+ / 0-)

    discussions of what constitutes metadata...  What about the cell phone location tracking when the cell phone is not in use?  Millions of people globally, maybe even billions now, use cell phones.  Even when not in use, if they are turned on, the movements of the cell phone holder are tracked several times a minute.  You stop at Starbucks, you stop to fill your tank, you go to the head, you stop off at your mistress's apartment for a quickie, you show up late for work, you go to a demonstration, whatever...

    All that information can be sucked up if they want to.  

    Since I don't know, I ask myself the following question.  

    If I were the NSA, would I want that information?

    Hell yeah.

    That's an enormous amount of information, maybe even more intrusive than the actual content of a call itself.  It's like having a fucking government chip in your head tracking all your movements.

    So if they're not doing it already (and I don't know) then they sure as hell will soon.  They may soon have a database showing every pit stop and trip to the store you ever make during your lifetime.  All properly protected under the law, of course.

    •  If I recall correctly... (5+ / 0-)
      Recommended by:
      Dumbo, JML9999, KenBee, earicicle, Don midwest

      ... iOS and Android both sent location data back to Apple and Google, respectively. We know both are subject to the Prism program. Presumably the NSA can get it if it wants it.

    •  Would you want information you can't use? (1+ / 0-)
      Recommended by:
      D Wreck

      The kind of tracking you are describing is a hypothetical that has not been demonstrated to be in operation. My assumption is that the tracking of your individual movement would impinge on your rights if you have been identified individually and without a warrant. Mind you a warrant for tracking you can be undertaken and executed without your knowledge, and with charges never filed, and such surveillance could still (hypothetically) be argued in court to have been founded on a reasonable basis.

      The point of tracking information independent of the individual identification of each person who represents a data point is to generate a graphic representation of general activity, in order to look for outliers. Therefore collecting the information has the effect of deliberately throwing most of it out the window in order to focus on a tiny minority of the data points.

      It's a fair debate as to whether such programs should be allowable

      •  A couple of weeks ago, (1+ / 0-)
        Recommended by:
        D Wreck

        I would have thought that would be a wise caution:

        The kind of tracking you are describing is a hypothetical that has not been demonstrated to be in operation.
        However, since then, I've read countless arguments that begin, "So what?  Didn't you already know or suspect they were doing stuff like this?  Why feign outrage now?"

        So let me anticipate, sometime down the line, if/when we discover that they are and have been doing this, somebody's going to try to blow it off with the same message.  Because, really, we kind of knew they had to be doing SOMETHING with all that information.

        My assumption is that the tracking of your individual movement would impinge on your rights if you have been identified individually and without a warrant.
        Unless they have some secret legal opinion (and we've seen this happen many times already), this one saying that they can do that in a broad number of cases.  Like you, I'm speculating.  We'll never know because they don't tell us the truth about these things, or else they don't tell us at all.  Or they censor the news.  Or they lie to congress by telling the least untruthful untruths.  That has been the latest behavior.

        But you say they can't use it.  I don't feel certain of that.  Just think.  If they discovered that some major suspect had used a cell phone with number nnn-nnn-nnnn or whatever, a year ago, wouldn't it be ever so handy to go back in time and see all the tracking information on that phone number for the previous year and the year afterward?  How could they resist making that argument?  Who would argue against it?

  •  Smith vs Maryland wiki-Pen Registers (1+ / 0-)
    Recommended by:

    In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company.
    A pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.

    I want 1 less Tiny Coffin, Why Don't You? Support The President's Gun Violence Plan.

    by JML9999 on Thu Jun 27, 2013 at 10:41:00 PM PDT

  •  Draft IG report on justifying metadata collection (1+ / 0-)
    Recommended by:

    At this point in time, parts of the spying had been shut down, as a result of the Ashcroft hospital room showdown:

    After extensive coordination, DoJ and NSA devised the theory to which the Chief Judge of the FISC seemed amenable.... NSA representatives explained the capabilities that were needed to recreate the Authority, and devised a workable legal basis to meet those needs.
    They knew what they wanted for capabilities. So they cooked up the Pen Register theory to justify it.

    Even NSA itself recognizes it as an invented legal scheme.

  •  Frankly (3+ / 0-)
    Recommended by:
    maryabein, Don midwest, D Wreck

    There is a lot of pre-crime terrorist speech in the comments in this diary entry and I believe that this diary itself is suspect.

    "I'll believe that corporations are people when I see Rick Perry execute one."

    by bink on Fri Jun 28, 2013 at 03:39:43 AM PDT

  •  Guess I'll start covering my license plate (1+ / 0-)
    Recommended by:
    D Wreck

    with gaffer's tape. And later today I'm going to the public square to hold aloft my flaming Social Security card. WHO'S WITH ME??!!1!

  •  2 issues that should lead to a new standard (1+ / 0-)
    Recommended by:
    D Wreck

    First, the collection and computer analysis of large amounts of "metadata", can reveal things that a person has a reasonable expectation of privacy of.

    Second, when it comes to internet communications, there really isn't any such thing as "metadata".  Unlike a phone call, knowing "who" you are contacting reveals the content of that communication.  Just by looking at http requests they can know what web pages you've visited, what links you've clicked and what downloads you've made.

    I think most people would believe that they have a reasonable expectation of privacy as to what websites they visit on their computer at home.

    "It was believed afterward that the man was a lunatic, because there was no sense in what he said." "The War Prayer" by Mark Twain

    by Quanta on Fri Jun 28, 2013 at 05:41:29 AM PDT

  •  I think the third party doctrine is deeply flawed (2+ / 0-)
    Recommended by:
    MKinTN, D Wreck

    Even though we all "voluntarily" hand over our metadata and even data to our telcoms, banks, employers, insurers, etc., in the course of doing business with or working for them, it's less "voluntary" than unavoidable. Telcoms need to be able to record the date, time, duration and other party of our phone calls to be able to bill us, and the cell towers and our GPS location to be able to serve us better. Banks need our transaction information to handle our money properly. Employers need our SSN, DOB and other information to be able to pay us and comply with federal and local laws. And so on. Few dispute this.

    But I believe that an expectation of privacy still exists within the customer-company and employee-employer relationship, that is just as sacred as that in our own private lives, not subject to intrusion by anyone, be it government or some other entity, except for some very good reason, demonstrated to and approved by a suitable court of law, and not simply ad hoc let alone writ large.

    I realize that this expectation is counter to some of the above SCOTUS rulings. But so what? Just because something is currently held to be constitutional doesn't make it right or actually constitutional. I mean, Dred Scott, Plessy, Santa Clara, Citizens United, Bush v. Gore, the recent VRA ruling? SCOTUS gets it wrong a LOT, especially when it finds in favor of power. Like all the branches of government, in theory the courts serve all the people, but in reality they often if not usually serve the powerful, and well-off.

    Plus, my understanding of these rulings is that the government still needs to have a reasonable and salient need to obtain certain information, and collecting it on nearly every American is certainly not reasonable nor salient in terms of the stated reason, counterterrorism. So there is still some hope that these specific programs might someday be found to be unconstitutional. Or, public pressure might put a stop to some of them. Or, congress may someday pass more restrictive laws on how government can spy on us.

    I'm not ready to throw in the towel on this.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Fri Jun 28, 2013 at 05:58:52 AM PDT

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