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"Look Who Else is Listening"

-- By JuanPaoloFajardo - 10 Dec 2015

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.”

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 “reasonable 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 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.

A. Metadata and Reasonable Expectations of Privacy

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. Miller argument: that information voluntarily disclosed to third parties does not enjoy reasonable expectations of privacy. Metadata (“data about data”) falls within this category for two reasons: first, when viewed separately, it represents “seemingly innocuous data points” far less substantive compared to the contents of private conversations. 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.

The weakness of Fourth Amendment protections is that its legal development has been too slow to capture the covert uses of metadata. 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. Unfortunately, the Supreme Court has yet to consider the privacy implications of metadata aggregation at the back-end.

B. What Happens at the Back-End?

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. In fact, it 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.” This revelatory potential is what makes metadata appealing to government surveillance. But this is not even the worst part of Mr. Snowden’s story.

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.

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.

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.

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.

Sources

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).

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