When the news of the latest, and some might argue
greatest, overreaching surveillance effort
by the U.S. government broke, my initial response was a half-yawn.
Phone records? Whoo-hooo. The NSA will now know exactly how lonely my
life is.
Actually, they won't. Verizon is too dang expensive.
Then we learned that more than phone numbers were involved. The NSA
has been subpoenaing metadata, from phone serial numbers to GPS
locations. This is more than "how many times did he call Pizza My
Heart?" This is every call, every GPS location, and even every cell
tower that your phone connects to, transferred to the government's
computers daily.
This isn't 1984. This is
Enemy of the State.
1. The Data is Not Simply Numbers
In
U.S. v. Maynard, the D.C. Circuit addressed
what one might be able to discern from GPS tracking:
"A person who knows all of another travels can deduce whether he is a
weekly church goer, a heavy drinker, a regular at the gym, an
unfaithful husband, an outpatient receiving medical treatment, an
associate of particular individuals or political groups and not just one
such fact about a person, but all such facts."
The metadata sought by the government explicitly excludes personal identification, except, how many public records
don't
have your phone number? Applied for federal benefits, a driver's
license, or a student loan lately? You probably included your phone
number.
If the NSA computers are powerful enough to dig through
every cell in America's metadata, they can certainly handle a little cross-referencing to public records databases.
2. Bush Did it First
Senator Diane Feinstein told the
Guardian, "As far as I know this is the exact three-month renewal of what
has been the case for the past seven years.
This renewal is carried out by the [foreign intelligence surveillance]
court under the business records section of the Patriot Act. Therefore
it is lawful. It has been briefed to Congress."
Unfortunately, saying, "the Republicans did it too" doesn't make it right, nor does "Judge OK'd it" ensure legality.
3. It May Not be Legal
The statute allowing such intrusions into Americans' privacy,
50 USC § 1861,
requires "reasonable grounds to believe that the tangible things sought
are relevant to an authorized investigation... to ... protect against
international terrorism ..."
Relevance, most would agree, is amongst the vaguest terms of legal art. Anything could be
arguably
relevant to a terrorism investigation. That is why discretion is
generally vested in judges to make reasoned decisions. We'd be curious
to know if there was any reasoning used at
all when the judge approved tracking every Verizon-serviced cell phone in America.
Finally, note that the statute requires "minimization procedures" to
be adopted by the Attorney General. These are supposed to detail
retention and dissemination of information concerning "unconsenting
United States persons" and presumably would limit the amount of time the
NSA can store the data (though there is no specific time limit in the
statute).
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