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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | "Look Who Else is Listening" | >
> | "U.S. Surveillance Through Bulk Metadata Collection: Exploiting the Weakness of Fourth Amendment Jurisprudence" | | | -- By JuanPaoloFajardo - 10 Dec 2015 | |
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> | A. Introduction | | | | |
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< | On June 5, 2013, the Guardian published a confidential Foreign Intelligence Surveillance Court (“FISC”) Order, care of Edward Snowden, requiring Verizon to hand over to the National Security Agency telephony metadata generated from its users.1 In response, President Barack Obama released a carefully worded statement: “[N]obody is listening to your calls. That’s not what this program’s about… But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.”2 | >
> | On June 5, 2013, the Guardian published a confidential Foreign Intelligence Surveillance Court (“FISC”) Order, care of Edward Snowden, requiring Verizon to hand over to the National Security Agency telephony metadata generated from its users. In response, President Barack Obama released a carefully worded statement: “[N]obody is listening to your calls. That’s not what this program’s about… But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.” | | | | |
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< | On the surface, the President’s words are both an appeal to the American public’s basic Fourth Amendment3 sensibilities and a legal maneuver to remove the NSA’s surveillance activities outside the standard of “reasonable expectation of privacy”4. However, underneath, Mr. Obama’s deliberate focus on Fourth Amendment principles steers public attention away from the more horrifying aspect of Mr. Snowden’s exposé: that the U.S. government’s most effective surveillance tools are telecommunications and technology companies such as Verizon, Microsoft, Google, LinkedIn? , Facebook, Apple, and Yahoo (“TTC”) already engaged in the aggregation of personal information through means that easily evade Fourth Amendment protections and, much worse, public scrutiny. | >
> | On the surface, the President’s words are both an appeal to the American public’s basic Fourth Amendment sensibilities and a legal maneuver to remove the NSA’s surveillance activities outside the standard of “ legitimate expectation of privacy”. However, underneath, Mr. Obama’s deliberate focus on Fourth Amendment principles steers public attention away from the more horrifying aspect of Mr. Snowden’s exposé: that the U.S. government’s most effective surveillance tool involves the wholesale collection of bulk metadata from telecommunications and technology companies (“TTC”) for purposes of engaging in population surveillance which easily evades current Fourth Amendment protections and, much worse, public scrutiny. | | | | |
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< | A. Metadata and Reasonable Expectations of Privacy | >
> | B. Metadata and Reasonable Expectations of Privacy | | | | |
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< | When the President contrasted “listening to your calls” from the term “metadata”, he impliedly invoked the government’s almost four-decades-old U.S v. Miller5 argument: that information voluntarily disclosed to third parties does not enjoy reasonable expectations of privacy. The relevance of this doctrine Metadata (“data about data”) falls within this category for two reasons: first, when viewed separately, it represents “seemingly innocuous data points”6 far less substantive compared to the contents of private conversations. | >
> | At the onset, we must understand what metadata is. It means “data about data”. It refers to “structured information that describes, explains, locates, or otherwise makes it easier to retrieve, use, or manage an information source.”. Telephony metadata, for example, includes “the length and time of the calls and other similar dialing, routing, addressing, or signaling information.” Metadata essentially functions to establish second tier knowledge regarding the data or information apart from its content. | | | | |
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This won't fly. The contents of the call are disclosed to the carrier in precisely the same way that the "metadata" are. There's no difference between the envelope and the message, they're just bits on the company's net. Your argument cannot be right because it proves too much.
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> | When the President contrasted “listening to your calls” from the term “metadata”, he was referring not only to the technical distinction between content and metadata, but also the legal limits of obtaining one as compared to the other within the context of the Fourth Amendment. This distinction lies at the heart of the government’s surveillance claims: the acquisition of bulk metadata from TTC’s without the need for establishing probable cause does not constitute an unreasonable search. | | | | |
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> | The bedrock of the government’s position can be traced to the Supreme Court’s rulings in U.S. v. Miller and Smith v. Maryland, both of which apply Katz v. United States’ third-party doctrine exception to the Fourth Amendment: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” In Miller, the court ruled that bank depositors have no legitimate expectation of privacy in the transaction records maintained by banks. Similarly, in Smith, the court saw as permissible the installation of pen registers in telephone company property without a search warrant because it did “not acquire the contents of communications” and because there is no legitimate expectation of privacy in numerical information voluntarily conveyed to the telephone in the ordinary course of its business. | | | | |
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> | Based on these cases, the government’s argument is simple: The acquisition of metadata is not synonymous to the acquisition of private communications, which explicitly enjoys Fourth Amendment protections. Any extension of the Fourth Amendment to metadata must be based on the existence of legitimate expectations of privacy over such information, which the Supreme Court has already ruled otherwise due to the voluntary nature of its conveyance to third parties, namely TTCs. | | | | |
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< | Second, it is generated from user transactions with TTCs, the retention of which are “legitimized” by the contractual terms and conditions of service, users consistently (albeit recklessly) agree to.
No. No one recklessly signs terms of service for telephone service that relinquish rights to be free of constitutional protections. This too is not an argument you verified, just one you supposed and did not check.
The weakness of Fourth Amendment protections is that its legal development has been too slow to capture the covert uses of metadata.
No. The weakness is that no court has ruled on the constitutionality of covertly acquiring metadata. Which is a matter of time and judicial willingness to engage.
The government has consistently found safe harbor under the Miller doctrine inasmuch as “reasonable expectation” has been jurisprudentially fixated only on the front-end level of collection.
Citation? For one such ruling on this particular subject, never mind "consistently"?
Unfortunately, the Supreme Court has yet to consider the privacy implications of metadata aggregation at the back-end. | >
> | This argument, however, is an obvious exploitation of the weakness of current Fourth Amendment jurisprudence in the face of present-day bulk metadata collection and the growth of technology that has allowed metadata to fuel covert intrusions into individual privacy. Current jurisprudence is fixated only on the front-end level of metadata collection and no court has ever considered the privacy implications of bulk metadata aggregation at the back-end. | | | B. What Happens at the Back-End? | |
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< | The value of metadata to U.S. surveillance becomes apparent when it is aggregated on a large scale and used to ferret out hidden facts about a data source through sophisticated analysis. Data derived from consumer purchases, social networks, Internet Protocol addresses and similar records can expose intimate details about a person’s life, his activities and even his identity.7 In fact, it can “reveal who we are, who we know, what we do and care about and plan to do next”.8 It can even “reveal things that we never intentionally communicated at all.”9 This revelatory potential is what makes metadata appealing to government surveillance. But this is not even the worst part of Mr. Snowden’s story.
This isn't Mr Snowden's story. it's yours, and although I recognize some parts of it they feel confused to me and not, to use your word, "sophisticated." Why not actually explain what would be done with bulk call data?
C. Don’t Go Pointing Your Fingers at the Government Just Yet (At Least Not All of them).
The fixation on the Fourth Amendment is a fixation on privacy protections, purely against government intrusion. This poses a significant problem because, as Mr. Snowden’s revelations show, the NSA is merely piggybacking on the metadata collection efforts of TTC’s who are not governed by the Fourth Amendment. Given the amount of latitude TTCs enjoy in the collection of user data, one might wonder what they do with it.
No, that's not actually the problem. Why not instead investigate what legal limits there are with what they can do with it, and who "they" are and who limits them?
The truth of the matter is, TTCs do their own spying, but for completely different reasons; in a more efficient way; and to a much broader extent.
Metadata in the hands of TTCs, at first glance, seems normal given the nature of the services they provide (internet access, communications, social networking, etc.). However, the government’s reliance on TTCs for metadata means that the latter possesses a vast amount of it sufficient to supply the former’s intelligence needs. After all, metadata is most revealing when analyzed on a large scale.
What does this last paragraph mean?
TTCs’ possession of that much metadata indicates an intent to use it for their own intelligence activities; not for national security, but for profit. Metadata, because of its revelatory potential, serves as the “building block” of knowledge information, which, in a consumption-based global economy dependent on predicting consumptive behavior, is “a value-added asset”. Hence, metadata, is extremely valuable to commerce as the fuel for business intelligence, which, in turn, allows TTCs to know what its users want, and ultimately, to influence and manipulate their behavior.
Any layer of factual support in citable sources here for commercial uses in siubscriber call data by phone companies? State PUCs and AGs will be fascinated, I think.
Given the intrusive nature of aggregated metadata, one would think that the public would be protective of it. However, you’d be surprised how much TTCs collect metadata and how easily they get away with it. TTCs collect metadata by controlling the primary software platforms through “which the vast majority of users access the Internet.” This allows TTCs to infiltrate the most common devices people use (i.e. smartphones and laptops) to communicate and interact while keeping them in the dark as to the commercial value and intrusive potential of the data being extracted from each transaction. With this information asymmetry, users freely give away their metadata in exchange for TTC services thinking that the trade off is mutually beneficial, equitable and consensual. Now imagine 2,925,249,355 Internet users (roughly 40% of the world’s population in 2014) using these software platforms and you will barely have a glimpse of what the U.S. government is after.
D. Conclusion
In 2014, Microsoft, Google, LinkedIn? , Facebook, Apple, and Yahoo each filed lawsuits before the FISC to disclose to the public the number of FISA requests made to them in the past. They want you to believe that they have your privacy in their best interests. They want you to think of your Fourth Amendment rights. They want you to think that they are also victims of government spying. However, what they don’t want you to know is that they’re even better than the government in spying and that they do it purely for money. So the next time you click “Like” online, think about who profits and at whose expense.
I don't know what the central idea of the essay is. I can't find it stated clearly for me anywhere. There are many places where it appears to me that someone else's idea has been reproduced with some lossage, and I have the sense of hovering legal positions declared in cases I've never read or heard of and that aren't cited to me. These are points of detail that would come out in a line by line edit requiring every factual and legal statement to pay its way with a link that backs it up—an editorial step it seems to me should have occurred already, but can be taken now. But the higher editorial function—that distills the point out and makes clear to the reader what it is, how to develop it from its materials, and how to use it as a springboard to further thinking—has also not happened yet, so far as I can see.
Sources
Why aren't these links, attached to whatever statements they are supposed to be backing up? Why have you chosen not to provide web references to materials reachable for the reader?
1. Secondary Order, In Re: Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from Verizon Business Network Services, Inc. on Behalf of MCI Communication Services, Inc. D/B/A Verizon Business Services, No. BR 13-80 (FISA Ct. Jul. 19, 2013), http://www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-order.
2.Joseph D. Mornin, NSA Metadata Collection and the Fourth Amendment, 29 Berkeley Tech. L.J. 985, 987 (2014) citing Transcript: Obama’s Remarks on NSA Controversy, WALL ST. J. (June 7, 2013), http:// blogs.wsj.com/washwire/2013/06/07/transcript-what-obama-said-on-nsa-controversy.
3. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”, U.S. Const. amend. IV.
4. U.S. v. Miller, 425 U.S. 435 (1976).
5. Chris Conlley, “Protect Our Privacy – Protect Our Metadata”, Am. C.L. Union of Northern Cal.: Blog (Feb. 26, 2014), https://www.aclunc.org/blog/protect-our-privacy-%E2%80%93-protect-our-metadata.
6. Lawrence Lessig, Code Version 2.0, 216 (2006).
7. Ryan Hartzell C. Balisacan, Claiming Personal Space in a Globalized World: Contextual and Paradigm Shifts in the Delimitation of the Right to Privacy, 82 Phil. L. J. 67, 82 (2007). | >
> | When Smith was promulgated in 1979, the idea of metadata collection was limited in terms of subject, breadth and purpose. In fact, the constitutionality of the pen register installation was adjudicated in the context of a criminal investigation of a suspected robber and the information obtained was limited to telephone numbers. Fast-forward to 2013, Mr. Snowden’s disclosures have painted a different view of metadata collection. Now, U.S. surveillance efforts involve the broad collection of bulk telephony metadata from millions of users stored in the servers of the world’s largest technology companies, unrelated to the investigation of any specific person or any specific crime. | | | | |
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> | According to the Foreign Intelligence Surveillance Court, the volume of metadata records currently being acquired by the U.S. government does not alter the Supreme Court’s conclusion in Smith. From the front-end, yes, the volume of metadata collection doesn’t change the nature of metadata as understood by the court in Smith. However, at the back-end, what the U.S. government does with bulk metadata necessitates a change in judicial perspective. | | | | |
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> | After the U.S. government acquires bulk metadata from TTCs, it subjects this information to various Big Data processes that allows it to “search, aggregate and cross-reference large data sets” with the hope of unearthing “actionable data” for “national security and policing purposes”. Through this aggregation, bulk metadata can “reveal who we are, who we know, what we do and care about and plan to do next”. It can even “reveal things that we never intentionally communicated at all.” An example of the U.S. government’s Big Data practice is the PRISM program which allows the NSA direct access to the servers of companies such as Apple, Facebook, Google, Microsoft, Skype, Yahoo, and YouTube? . | | | | |
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> | With Big Data practices driving the back-end of the U.S. government’s bulk metadata collection, surveillance activities can now unearth information that falls outside the category of communications content, but nevertheless intrudes into reasonable zones of privacy that may require further protection of the courts. The problem is that current jurisprudence is merely concerned with whether the acquisition of metadata is permissible under the Fourth Amendment. It never considered the nature of the information metadata generates when aggregated. While it is simply a matter of time and judicial willingness (See Justice Sotomayor's concurring opinion in U.S. v. Jones) before the privacy implications of bulk metadata collection is directly addressed by the courts, this gaping jurisprudential hole begs the question: How do we protect our privacy in the meantime? | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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