Once Again Arriving At The Intersection of Law, Technology and the Expectation Of Privacy. Court Rules That Vast Collection of Metadata Is Not Allowed By Patriot Act.
Were you surprised a couple of years ago when Edward Snowden released documents that showed that the NSA had a program whereby they collected all metadata on all phone calls within the U.S. and stored them in a database for possible future use? I must confess I probably ho-hummed that one a little bit and continued to expect that pretty much anything I did by phone or on-line could one day be reviewed by someone for some purpose or no purpose at all. I'm not saying I liked that but like many I have lost faith in any real privacy.
Now, a federal court has said that the unlimited, unrestrained collection of such metadata is beyond the congressional intent expressed in the Patriot Act. ACLU v. Clapper [the "Clapper Case"] Setting aside for a moment the notion that "congressional intent" may be an oxymoron, the language of Section 215 of the Patriot Act as it was feed steroids after the attacks of September 11 allowed for: "...an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."
The first such order to come to light was directed to Verizon and required Verizon to turn over "on an ongoing daily basis . . . all call detail records or `telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls." Note the "wholly within the United States" language. The Government, in the Clapper Case, declined to either affirm or deny that other major carriers were subject to the same language. More than likely this means that if you have a cell phone with a major carrier, your call metadata is residing somewhere on a government controlled server. The Government counters that this is not the content of the conversation nor has it been reviewed. The Court in Clapper found that even without the content, metadata could reveal that a caller was "...a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when he or she is involved in intimate relationships."
The Patriot Act allows the collection of things that would otherwise be obtained through a grand jury subpoena. The Court reasoned that the issuance of a grand jury subpoena, while given very broad latitude, had to have some relevance to the matter at hand and since there was no present intention to review the metadata nor any issue to which it was specifically relevant, this exceeded the authority granted.
It should be emphasized that this was merely a statutory interpretation and the Court expressly stated that it was not ruling on the constitutionality of the statute. A concurring opinion stated that because it was a statutory interpretation, Congress could fix it (albeit with still the Fourth Amendment issue). So Congress, with all its alacrity, is trying to deal with the issue. These provisions of the Patriot Act sunset on June 1 and we all know how effectively this Congress deals with deadlines. In the meantime, keep using that cell phone.