An outdated Supreme Court ruling that first put the “meta” in metadata is to blame.
The United States, in the oft cited phrase, is a government of “laws and not of men.” We look to the Constitution and the Supreme Court to regulate what is permitted. One battleground in the debate about the NSA no-longer-secret surveillance program concerns its legality. And even if laws authorize it, are those laws constitutional?
To some, it seems impossible that a near-universal collection of our emails, phone calls and texts could ever fit within the Constitution’s limitations on searches and seizures. Yet, a decades-old decision by the highest court may have given the green light to this, by setting up the distinction between the content of communication and information about it — so-called “metadata.”
The 1979 case is a landmark, and highly suspect, decision of the Supreme Court, known as Smith v. Maryland
Smith v. Maryland
This case, (formally cited as 442 U.S. 735) which was decided by a 5-3 vote, has been often used as part of the justification for the claim that what the NSA is doing is legal. There is an odd symmetry surrounding the case, as was discussed last week. Justice Antonin Scalia, a very conservative judge, recently defended privacy rights. In the Smith case it was a very liberal justice who authored a significant erosion of the right of privacy.
A woman had been robbed and then received a number of threatening phone calls from a man claiming to be the one who robbed her. Suspicion fell on one Mr. Smith and the police decided to to put a “pen register” on a phone line. This device would not record the actual conversation; it would note when a call was made and what number was called. This information proved essential to convicting Mr. Smith.
No warrant had been obtained to place the pen register on Mr. Smith’s line. Why a warrant was not obtained is not clear; there seems to have been ample justification for one as the police had learned that Mr. Smith was the owner of a car known to be associated with the robbery.
Smith’s conviction was appealed. The case worked its way to the Supreme Court, where Justice Harry Blackmun, famous for establishing a woman’s right to an abortion in Row v. Wade, authored an opinion allowing this warrantless data collection to stand.
Giving your information to the computer
The case turned on a distinction between the content of the telephone call and the phone number being dialed. The majority argued that you have to tell the phone company what number you are dialing so they can send your call in the right direction, but you don’t tell them the content of your call. So the number isn’t private, but the words spoken are.
This is a very curious notion of how networks of electronics work. It seems to assume a sort of 19th century switchboard where a human operator is told who you’d like to speak to, but doesn’t listen in on your call. In fact, the majority decision cites this exact scenario as an analogy to prove their point, seemingly unaware of the cultural cliché of the phone operator snooping on calls.
In fact, the switching equipment, the amplifiers and the wires (and the mechanical relays that predated all of this) are either aware of nothing or of everything. They react to the buttons you push when you select a number to call, but they also react to the sound pressure of your voice in order to convert it to electrical impulses to send down the wire. If you make a call over the telephone network, every aspect of your call is shared with the phone company, not just the number.
In other words, a telephone makes no distinction between form and content, data and metadata. The distinction the court drew is absurd on its face.
A key concept in search and seizure cases goes by the name of “expectation of privacy.” We expect to be private inside our houses, in a hotel room, in the stall of a public restroom. But we don’t expect to be private if we’re shouting something while standing on a sidewalk. If you expect to be private, there is more need, in the eyes of the law, for the government to get a warrant than when there is no expectation of privacy.
How do you decide if there is an expectation of privacy? It would seem that you’d have to ask people or look to social conventions to decide. That doesn’t always work – people tend to assume their desks at work are private, but they aren’t since they are owned by the company. However, it seems pretty obvious that people regard a telephone conversation as private as two people talking quietly in a corner.
Courts use a standard of reasonableness – is it reasonable for you to expect to be private? If you’re in the middle of the sidewalk shouting, you can claim privacy, but no one would think it was reasonable of you to do so.
The majority felt there was “no legitimate” expectation of privacy for the numbers that a person calls.
A secret shared
They went on to point out that the phone company keeps track of this information for legitimate business purposes including sending you a bill with a list of the long distance numbers you called. The phone company, however, doesn’t normally record and keep the contents of the actual call. So that means, the majority concluded, that it isn’t reasonable for you to think the number you called is private.
They argue, in effect, that if you share a number with one person (or with the phone company), you have shared the number with the world, or at least you that have given up all expectation of privacy.
Again, this is absurd. We share things with one particular person all the time, while with the expectation that it remains private to that person. Certain forms of sharing (between spouses, with a lawyer, a doctor or clergy) are explicitly protected so they will remain private. That I have told the phone company who I’ve called does not mean in the least that I’d be happy if someone stole my phone and showed everyone who I had called.
That the phone company keeps this information and sends it to you on your bill also does not eliminate your interest in the information staying private. As Justice Marshall wrote in a dissent “Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.”
The mention of banks is instructive. You have to tell the bank who you are sending a check to, but that doesn’t mean you wouldn’t care if your bank statement was published in the newspaper.
Expect more problems
The distinction between the content of your calls, texts and emails and their metadata (time, length, destination, etc.) is being used to claim that “no one is listening in” to your calls when the NSA records all this. It is a distinction that never should have been enshrined in law.
The erosion of privacy rights and the explosion of government surveillance can’t be put down to just a couple of court decisions. The entire trend of society is for us to share more and more information, be it on Facebook or by texting friends. We share with more and more organizations and we’ve probably lost track of who we’ve shared it with. We access sensitive data from our mobile phones, from a random ATM machine in a store and we store this information not on our own devices, or even on a single company’s machines, but “in the cloud” on networks of machines.
So in a way, we allowed this to happen. Perhaps the real scandal of the NSA is that we aren’t all that scandalized.
The views expressed in this article are the author’s own and do not necessarily reflect Mint Press News editorial policy.