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Don’t Tread on My Metadata

Whatever you think of Snowden, his actions have drawn significantly more attention to the NSA’s intrusive programs. Now the question is: will anything be done about them?

by
Amy Peikoff

Bio

December 12, 2013 - 9:07 am
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Do you classify Edward Snowden — the former National Security Agency contractor contractor charged with espionage, and runner-up for Time‘s “Person of the Year” — as a hero or a traitor? Your answer likely depends on your opinion of the NSA programs he helped publicize via his leaking of highly classified documents. In this week’s revelations, we learn that the NSA deploys agents to infiltrate online gaming communities, and that it uses the Google tracking cookies we thought were responsible only for that eerie and annoying targeted advertising. We also learned recently that the NSA collects “nearly 5 billion records a day on the whereabouts of cellphones around the world.” Earlier this year, we learned that the NSA has been continuously collecting phone record “metadata” of all Verizon customers for the last seven years. The NSA also accessed email and other forms of Internet communication — including Skype voice and video communications — via a secret program called Prism. Director of National Intelligence James Clapper described these programs as “acquiring” information only about foreigners, and yet “49-plus percent of the communications [intercepted and stored under the Prism program] might be purely among Americans….”

Whatever you think of Snowden, his actions have drawn significantly more attention to the NSA’s intrusive programs. Now the question is: will anything be done about them?

Proponents of the programs have noted that, although data collection is performed without probable cause or particularized suspicion, only transactional metadata, not the content of communications, is collected. Moreover, their proponents continue, these programs make it easier for the government to identify and track suspected terrorists, and therefore strike the right “balance” between privacy and security. In addition, some argue, the programs are perfectly legal: according to the “third-party doctrine,” there is no “reasonable expectation of privacy” in metadata we share with our phone companies, Internet service providers, etc., and the collection of metadata is authorized by the Patriot Act or the FISA Amendments Act.

The applicability or purported constitutionality of these statutes is, I think, beside the point. The third-party doctrine itself is flawed and should be eliminated.

In this article, I’ll first discuss the third-party doctrine, including its history and the types of cases to which is has been applied. Then I will propose a better way of dealing with cases typically thought to fall under this doctrine. Finally, I will use the common law of contract to answer the charge that eliminating the third-party doctrine will prevent government from using secret agents in law enforcement.

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Top Rated Comments   
If you understand what the NSA has done under the rubric of Metadata they you would know that they actually collected the names, phone numbers and e-mail addresses from you address book. It doesn't matter what you consider Metadata to be as an IT guy because the NSA and the government have a different operating definition.
45 weeks ago
45 weeks ago Link To Comment
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All Comments   (23)
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LOOK AT HISTORY FIRST
Starting in 1898, State Department got a copy of cable messages from NY, read metadata address, snipped out tape sections of interest such as diplomatic traffic of Spain, and sent it to the code breakers. Rest into trash. In 1917, the breakers decoded the Zimmerman Telegram but feared to tell the President as he was one of those who today would zero out NSA. He had to get it from the British code breakers. This office was totally destroyed by Secretary of State Stimson and President Hoover. The gaping hole was not filled by President Roosevelt. The result was that the Attack on Pearl Harbor was the disaster it was, when instead it could have been the greatest ambush in history.

The Navy code breakers reading Japanese Navy codes were pulled off of that by FDR to read the diplomatic traffic, which had veiled references to the attack. The military traffic, left untouched, had chapter and verse on the attack.

Part out NSA and what kind of a mess will result in the future? How many of us will die?
44 weeks ago
44 weeks ago Link To Comment
What I'm talking about is eliminating routine collection of data in bulk, data pertaining to the telephone, banking and online activities of ordinary citizens, about whom we have no probable cause or particularized suspicion. Use of spying in warfare against enemies, or searching for data with a proper warrant, would still be allowed on my model.

Also think of it this way: imagine how many more deaths we might prevent if we were all under 24/7 video surveillance?
44 weeks ago
44 weeks ago Link To Comment
But wait, there's more! In today's revelation we learn that the NSA can crack cellphone encryption and, thereby, listen in on phone calls and read text messages. But of course we trust them not to abuse this tool, right?

http://www.washingtonpost.com/business/technology/by-cracking-cellphone-code-nsa-has-capacity-for-decoding-private-conversations/2013/12/13/e119b598-612f-11e3-bf45-61f69f54fc5f_print.html
44 weeks ago
44 weeks ago Link To Comment
If you reject, as I do, that the validity of the Nuremberg Defense, then Snowden is a hero. A big hero.

My question for you though: if the third party doctrine is thrown out and replaced by a contract/property based system, how would damages be measured in the event the third party breaches with a wrongful disclosure? If the information disclosed is innocent and harmless, your damages will be minuscule; and if the information is not innocent, again your damages in protecting that information would not seem very compelling. So how would you measure damages?
44 weeks ago
44 weeks ago Link To Comment
Damages are always a challenge to measure; we leave that to juries to judge, after giving them the proper instructions as to what they are allowed to consider. I think damages for a violation of a distinct privacy tort aren't any easier to measure, are they? Of course in a contract you could have a liquidated damages clause that, hopefully, a court would uphold. Try that with an invasion of privacy tort :)
44 weeks ago
44 weeks ago Link To Comment
The National Security Agency spies on literally millions of phone records. It captures millions of e-mails. It 'sifts' through millions of megabytes of private data. And it does this all without following the requirements of the Fourth Amendment, which makes it a criminal organization or crime syndicate, with every one of it's employees therefor a member of a criminal organization or crime syndicate, and one that is very much like the protection racket Mafia with it's threat of harm coming to you and your children if you don't support it. There is no doubt in my mind that the Founding Fathers, to a man, would consider it an anti-American abomination far worse than King George, and would oppose it, and violently oppose it if necessary.

But their countries were not free, nor can any country remain free under such despotic power. Some of the current worship of powerful executives may come from those who admire strength and accomplishment of any sort. Others hail the display of Presidential strength … simply because they approve of the result reached by the use of power. This is nothing less than the totalitarian philosophy that the end justifies the means…. IF EVER THERE WAS A PHILOSOPHY OF GOVERNMENT TOTALLY AT WAR WITH THAT OF THE FOUNDING FATHERS, IT IS THIS ONE
- Barry Goldwater

The now the Obama administration's NSA commits espionage against American citizens in mass and in depth, and without any scintilla of probable cause, and when someone (Snowden in this case) reveals this then that person, according to the Obama administration, is guilty of ... ... ... espionage. .. ... and, oh yes, a traitor, of course, It would be as if someone revealed that some officers in the local police department were dealing drugs and then the police department charged them with ... ... ... dealing drugs. What is needed is a way to curtail the anti-American, anti-patriotic, anti-Bill-of-Rights, anti-natural rights, and I might add almost totally, if not totally, ineffective against terrorists, NSA, America's version of East Germany's STASI and the Keystone Cops..As an American version of the East German Stasi, the N-Stasi-A is most excellent. As anything that protects our security it is all but if not utterly worthless.

The vital question is not "Oh look, there's Snowden", but to what degree should the Bill of Rights be eviscerated and within America's own borders, such as we have of borders? I say it should not be at all and I am certain that to a man, the Founding Fathers would wholeheartedly concur. But I do want to thank the Founding Fathers for all the sacrifices they made however much they now seem to have been in vain.

With it's warrantless 24X7 spy programs the NSA is committing non-stop acts of war on the United States Constitution and hence the American nation and people and is maliciously and with forethought pre-judging all American citizens as guilty until never proven innocent, so it is really a criminal organization itself and every employee working for it is therefor a member of a criminal organization. May they all have nightmares of Nuremberg ... every .. single .. night.
45 weeks ago
45 weeks ago Link To Comment
the problem seems to be that all the lawyers seem to think that we, the lowly subjects, are dumb. there are four pages of pjm text with multiple links telling us what the author claims and dismissing what others think. the actual text that matters is one sentence and i understand it quite well:


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.

all else is lawyers and politicians trying to tell us why that doesn't apply to us. the thing is, the Constitution was written for the people. it was written to mean what it says, not what it can be twisted into.
45 weeks ago
45 weeks ago Link To Comment
jlw, the problem is that lawyers stopped applying the Fourth Amendment to 3rd-party records in the 70s, because of this Third-party doctrine. I am simply trying to undo the damage that prior lawyers have done. You and I are on the same side here.
45 weeks ago
45 weeks ago Link To Comment
Henry VI part II act 4 scene 2

i seriously doubt that the solution to lawyers is more lawyers. i have never yet met one whose "side" wasn't dependant on who signed the check.
45 weeks ago
45 weeks ago Link To Comment
jlw, sorry, but this is plainly untrue. Although counsel brings the case to the SCOTUS on behalf of the client, cases can be (and are often) significantly influenced by amici curiae briefing submitted not only by interest groups, but academics such as Ms. Peikoff as well.
44 weeks ago
44 weeks ago Link To Comment
clearly not untrue if you read what i said. "I have never yet met one..."

such a creature might exist. just not in my experience.

as for the SCOTUS cases, the lawyers get paid. i donated to snyder v westboro. the lawyers got paid. as for "academics", getting paid there, too.
44 weeks ago
44 weeks ago Link To Comment
OK, I did not read what you said. I just read what you said & then made a comment.

Nonetheless, it sounds like you're just trying to argue w/yourself right now & have a fallacious understanding of the legal world.

All the best.
44 weeks ago
44 weeks ago Link To Comment
I am not clear what meaning of metadata the author has in mind in this article.

I'm an IT guy who is very familiar with databases and, in my circles, metadata doesn't seem very harmful. When I discuss metadata with colleagues, we are talking about the structure of the data, not the data itself. For example, pretty much everyone has an address book of some kind, either a computer program or a physical book, in which they keep information about their friends and contacts. The data in that address book is the names, addresses, phone numbers, etc. that they have on the people and businesses listed in their books. The METADATA, however, is just the types of facts that are stored in the address book, NOT the data itself. Therefore, if you asked me for the metadata of my address book, I would tell you that it contains names, home and work phone numbers, and email addresses. That information ALONE is the metadata; it does NOT include any of the actual names, phone numbers or email addresses in the address book.

I'm having a lot of trouble seeing how you could harm me if you only knew that my address book contained names, phone numbers and email addresses but I didn't tell you any of the specific names, phone number and email addresses that I'd accumulated.

I'm not sure if the author has an IT background; my impression is that her background is in law, not in Information Technology.

I wonder if the author has a different understanding of what metadata is? If so, perhaps she could share that with us? Otherwise, this seems like the proverbial "storm in a teacup"....
45 weeks ago
45 weeks ago Link To Comment
"Metadata" just means "data about data". The actual content of the metadata depends on what the data are. In this case, the data are the content of the phone calls. The metadata are the date and time of the call, the source and destination phone number, etc.

There is nothing intrinsic in any item of data such as a phone number that stipulates whether it is "data" or "metadata". It depends on the context. In the context of an address book, it's data. In the context of a phone call, it's metadata.
42 weeks ago
42 weeks ago Link To Comment
If you understand what the NSA has done under the rubric of Metadata they you would know that they actually collected the names, phone numbers and e-mail addresses from you address book. It doesn't matter what you consider Metadata to be as an IT guy because the NSA and the government have a different operating definition.
45 weeks ago
45 weeks ago Link To Comment
Yes, metadata, in the case of the Verizon bulk record collection, means the numbers you've dialed, how long you spoke to to the people with those numbers, the number of characters in the texts you sent them, when you called/texted them, etc. It's a lot of personal stuff.
45 weeks ago
45 weeks ago Link To Comment
"Metadata" is just a term that the N-Stasi-A came up with to make the fools think all their spying looks benign, so therefor it must be benign. No one should fall for it.

"Metadata" is basically a summary of detailed data, and if the N-Stasi-A has got the summary, they had the detailed data that it was built from and you can bet they didn't delete it.
45 weeks ago
45 weeks ago Link To Comment
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