Friday, June 7, 2013

Hanging on the telephone (metadata records)

It all started out innocently enough. A woman was robbed. She remembered the car the robber was driving. She started receiving threatening and obscene phone calls from a man who claimed to have robbed her. One night the man told her to go outside and she saw the same car she saw on the day she was robbed driving down her street. The police ran the license plate number and learned the identity of the driver.

She called the police to report the phone calls. The police, in turn, went to the phone company and asked them to install a pen register on the phone line of the man who owned the car in question. The pen register (a device that allowed the phone company to record the telephone numbers dialed from the phone line with the device), gave the police all they needed to connect the owner of the car to the phone calls and the robbery.

Now I shouldn't have to tell you what happened next. The owner of the car was arrested, charged with robbery and convicted. His motion to suppress the evidence obtained from the pen register was denied on the grounds there was no search. The conviction was upheld on appeal to Maryland's highest court.

Then the Supremes got hold of the case.

The Court held that the installation of the pen register didn't constitute a search because the defendant did not have a reasonable expectation of privacy as to the numbers he dialed from his phone. The Court also went to great lengths to explain that the contents of the phone calls weren't recorded, only the numbers dialed from the defendant's phone.

Fast forward to earlier this week and we find out that Verizon, among other providers, has been providing so-called meta data from phone calls on its network in response to an order issued by a secret court (Foreign Intelligence Surveillance Court). The government has been quick to point out that the only information obtained were the phone numbers dialed, the duration of the conversation, the location of the callers and the length of the call.

What's the problem los federales ask. We're just keeping tabs on who you're calling and how long y'all are talking for.

Of course, once confronted with the news that the government is spying on its own citizens, the director of national intelligence doesn't even waste his time with the time-honored non-apology apology. Nope, instead he goes straight for the blame the leaker card.
James Clapper, the director of National Intelligence, has released a statement, which, in part, says: "The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans."
Just because the Supreme Court got it wrong in Smith v. Maryland doesn't mean we have to follow that precedent. Yes, all of the information regarding who we call, how long we talk and where we are when talking may be found somewhere in the mammoth stack of data the phone of cell company maintains. In our increasingly connected world, such metadata has to be stored someplace, but just because it's stored in a server in the back room of the cellular provider doesn't mean the users of that service don't have a reasonable expectation of privacy as to whom they call and how long they talk.

These cases involving electronic privacy all start with the same incorrect premise that it is the state that determines what is private and what is not. In other words, if you follow the logic of the government in these cases you will come to the inexorable conclusion that, in the eyes of the state, nothing is private unless the government says it is.

Somewhere along the line we have forgotten that it is the people who are the sovereign in the United States. The Preamble to the U.S. Constitution begins with "We the people." Our government only has those powers that the people have ceded to it. The very notion that we only have a privacy interest in anything in which we have a reasonable expectation of privacy is badly flawed.

The truth is we have a privacy interest in everything that we do and anytime the government intrudes upon that privacy interest there is a search. The burden should not be on the individual to prove that he or she had a reasonable expectation of privacy, the burden should be on the state to prove that its intrusion into the privacy of an individual was not unreasonable.

This latest example of what the government has been doing since the 9/11 hysteria demonstrates that, not only, do bad facts make bad law, but that bad law perpetuates itself through the doctrine of stare decisis.

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