The NSA’s justification for scooping and storing mass amounts of metadata comes down to a precedent set before cell phones were even a thing.
The case — Smith v Maryland, 1979 — found that “warrantless” scooping of the defendant’s home phone metadata “did not violate the 4th Amendment.”
On Monday, Judge Richard J. Leon of Federal District Court for the District of Columbia dismissed the precedent in a 68-page ruling which gave a suspended injunction for the NSA to stop scooping metadata (giving the government time for an appeal).
In lieu of reading the entire opinion, George Washington University law professor Orin Kerr broke the ruling into four easy bullet points:
1) In Smith v. Maryland, the surveillance occurred over just a few days and the data was not stored for long, whereas the NSA conducts long-term surveillance and could keep doing so “forever!” (emphasis in original).
2) In Smith, the government requested the phone company to install the surveillance tool, whereas in the case of the NSA, there is a cozy, long-term relationship.
3) Datamining of information obtained is better today than it was when Smith was decided.
4) Most importantly, people use phones today a lot more than they did in 1979, when Smith was decided. Back when Smith was decided, only about 90% of households had telephones. But today, almost every person has a phone. As a result, people today have an “entirely different” relationships to phones than they did in 1979. This has led to greater expectations of privacy than existed when Smith was decided, and Smith no longer applies
Adam Serwer of NBC goes a step further today by pointing out that in 1979, metadata was specifically relevant to the investigation against Smith:
In 1979, the Supreme Court ruled that Michael Lee Smith, a man who made harassing phone calls to a woman he robbed, had no expectation of privacy in the numbers he dialed, because that information had already been given to the phone company when he made the call. At the request of the police, the phone company recorded the numbers dialed from his phone. A call made to the victim helped provide police with enough evidence to arrest him.
Metadata is contextual data generated when a person makes a phone call — the serial number on both the receiving and sending phones, the time, date, duration and frequency of connection (whether location is scooped or monitored has been a point of contention).
Metadata, as we now know, can tell a lot more about a person than just who they may be calling. In fact, it can be used to build a pretty well defined profile of that person, and if we add in location data, can be used to predict exactly where they’ll be in 24 hours, down to a meter-squared.
Evidence of the controversial collection practices hit the airwaves from Edward Snowden’s first leak, which detailed how the National Security Agency scooped “metadata” from cell phone calls made over Verizon’s networks.
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