It’s What You Do, Not What You Say

-Submitted by David Drumm (Nal) Guest Blogger

220px-Seurat-La_Parade_detailOn Friday, President Obama gave a speech concerning the collection of metadata by the NSA. Obama said “So, I want to be very clear—some of the hype that we’ve been hearing over the last day or so—nobody is listening to the content of people’s phone calls.” This is an example of the straw man fallacy. No reputable news reports have claimed that the content of phone calls is being listened to. We are well-informed enough to know that it is transactional data, metadata, that’s being collected. Obama also claimed that “the intelligence community is doing is looking at phone numbers and durations of calls.” What Obama excludes is the collection of the user’s location from cell tower ID, antenna sector, and signal strength.

Obama also noted that the intelligence community is “not looking at people’s names.” However, an MIT study showed that with only four phone calls, a person could be uniquely identified from a collection of 1.5 million anonymous people. Your metadata identifies who you are by what you do.

With the collection of Metadata, the government can determine your political leanings (perhaps from the blogs you read), sexual orientation, medical issues, religious worship, and even marital infidelities. As an example of the latter, consider the David Petraeus and Paula Broadwell situation. They set up a shared, anonymous e-mail account. Instead of sending e-mails, they would communicate by logging in and editing and saving drafts. When Broadwell logged in from various hotels’ Wi-Fi hotspots, a trail of metadata, times and locations, was correlated with hotel guests by the FBI. Broadwell was easily identified.

Law professor Daniel Solove has likened metadata to a Seurat painting. Each dot is meaningless until one steps backs and an accurate picture emerges.

In Smith v. Maryland (1979), a 5-3 decision (J. Powell took no part), the collection of a phone number, using a pen register, by the police was held not to be a search within the meaning of the Fourth Amendment. In the opinion of the Court:

Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.

This claim must be rejected.

In his dissent, J. Marshall foresaw today’s problems:

The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.

Mathematician Susan Landau, author of Surveillance or Security?: The Risks Posed by New Wiretapping Technologies, is interviewed about the importance of metadata:

H/T: Elspeth Reeve, Juan Cole, Evan Perez and Siobhan Gorman, Jay Stanley and Ben Wizner, New York Times.

48 thoughts on “It’s What You Do, Not What You Say

  1. As Marcus Aurelius should have said: “Of each thing, ask what it does; what typical behavior it exhibits, what unconscious habits it reflexively indulges.”

    Or, as the National Surveillance Administration puts it:

    “Of each person, ask whom he or she calls; who calls him or her; from where the calls originate and are received; their frequency and duration; without stating probable cause for violating the individual’s constitutional right to security in his or her person, papers, and effects; and without specifying the thing or things sought by the secret, self-authorized inquisition.”

    Something like that.

  2. Darren, I was not clear in my posting. I know what my ISP addy is and where to find it etc. I posted that exercise to show how easy it is to access a personal identifier and derive information from it by a third party. That list of info about me and my computer was the splash page of a randomly picked company on a Google search. The only thing they didn’t have was my name and address.

    If the government flags any transmission by any of us it will carry as metadata our isp and then a simple search engine can bring up all other data with that identifier. All they then need is a the list of client name/addy’s from the provider. Similarly, if there’s someone they are interested in and they have provider lists, they can derive the identifier and extract everything carrying that identifier from their vast store of data.

    Now, please correct me if I am wrong because this is a crucial bit of information: I thought at one point some time ago that your ISP # was the number of the closest transmission tower- sort of like ones electronic area code. I then did some searches and came away with: ‘no your ISP is the identity of the computer you are doing this search with and every electronic device you use to transmit information from and to, has it’s own discrete, absolute identifier’. That’s when the ISP provider lists of clients became very important to me.

    That being the case I am curious about the client lists of the ISP providers but have read very little about that. I’m wondering if there are specific requests, as we are told there should be, based on warrants, of if entire listings are being demanded or routinely funneled to NSA, FBI whoever?

  3. From Steve M.:

    The big story yesterday morning was a CNET story by Declan McCullagh titled “NSA Admits Listening to U.S. Phone Calls Without Warrants.”

    Charles Johnson noted at the time that what Nadler actually said didn’t match this claim:

    If you read this carefully, you’ll notice that the source for this “admission” is not the NSA at all — it’s second-hand information from Rep. Jerrold Nadler (D-NY). And Nadler himself never even says he heard it from the NSA….

    The key quote here is, “We heard precisely that you could get the specific information from that telephone.” Notice: Nadler did not say they could listen to the phone call, he said “get the specific information.”

    …There’s no mention of it in McCullagh’s article, but this entire discussion was about metadata. They explicitly say this several times, using the word “metadata.” And metadata is not “listening to phone calls”…

  4. But they are keeping a copy of your emails and phone calls so that they can look at them later, if you are doing something they don’t like and they want to crush you. Of course they could also simply fabricate anything they want, but this is only done if they cant find what they want, and to protect society.

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