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Judge destroys 'just metadata' argument

A federal judge demolishes the argument that what the NSA is collecting is "just metadata."
Keith Alexander
Director Gen. Keith Alexander testifies on Capitol Hill in Washington, Wednesday, Dec. 11, 2013.

A day after former National Security Agency contractor Edward Snowden leaked a secret court order revealing that the agency was gathering millions of Americans phone records, Senate intelligence committee chair Dianne Feinstein downplayed the report, telling reporters, "this is just metadata."

President Obama echoed that defense, reassurring Americans that "when it comes to telephone calls, nobody is listening to your telephone calls." At the beginning of last Sunday's CBS 60 Minutes defense of the NSA, reporter John Miller threw NSA Director Keith Alexander the world's slowest softball. "There is a perception out there that the NSA is widely collecting the content of the phone calls of Americans," Miller asked Alexander. "Is that true?"

But no one is arguing that this NSA program is collecting the content of Americans' phone calls.

Instead it is the collection of metadata that Snowden's leaked court order exposed -- the frequency, duration, and identifying numbers for the calls -- which can reveal a universe of information about a target even without capturing the content of the conversation. 

“A call to a suicide hot line, Alcoholics Anonymous, or a gay sex chat room at 2 a.m. are all more sensitive” than what a person might actually say on the phone, Christopher Soghoian of the ACLU told the New York Times in June.

The legal and political defenses of metadata collection are closely tied together.

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.

That 1979 ruling came at a time when America had no commercial cell phone network, email was only just being made available to consumers, and almost seven million American households didn't even have landlines. But it has been at the moral and legal core of the U.S. government's "just metadata" argument, namely that communications records are not private, and therefore it doesn't violate Americans' constitutional rights for the NSA to obtain all of them. 

On Monday Judge Richard Leon sided with the civil libertarians who argued that metadata should almost never be prefaced by the word "just," ruling that the NSA's bulk phone data collection program was likely unconstitutional. When the court ruled in 1979 that Americans had no expectation of privacy, the "almost Orwellian" technology available to the government now was "the stuff of science fiction." There's always been an obvious contradiction in the government's argument -- that collecting metadata is both invauable to intelligence gathering and not a threat to anyone's privacy.  Where the Smith case involved one person's phone records, the NSA data gathering involves billions or more.

Now that there are more than 300 million mobile subscriber connections in the United States, Leon wrote, "the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives." Whereas metadata might once "have revealed a few scattered tiles of information about a person now reveal an entire mosaic -- a vibrant and constantly updating picture of a person's life."

The thrust of Leon's ruling is that the 1979 Smith case -- and by extension, the argument that what the NSA is collecting is "just" metadata -- is an anachronism in a world where communications devices play such a prominent role in our lives. When one of the many challenges to the NSA's data gathering program finally makes it to the Supreme Court, the justices will have to confront the canyon between what metadata mean then, and what it means now.