It’s What You Do, Not What You Say

-Submitted by David Drumm (Nal) Guest Blogger

On 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.