The NSA domestic spying scandal has prompted outrage from many corners of society and the political sphere. Many, but not all – there are people who welcome the intrusiveness in exchange for security (or the false perception of it, but set that aside for another time), and there are people who claim that what the NSA is actually collecting, “metadata,” is neither protected by the Bill of Rights nor actually intrusive. “Metadata” is information regarding the communications themselves e.g. who, when, where, rather than the content of the communications, and there is some legal precedent for not considering the collection of that information subject to warrant. This precedent exists in the access police have to “luds,” or local usage details, which are lists of telephone numbers someone called, when those calls were placed, and the durations of those calls. The theory of the precedent is that one must share a telephone number with the telephone company in order for a telephone call to be completed, and in so sharing, one engages a third party in the communication and thus foregoes the privacy of that information.
This concept can easily be expanded to things like emails, EZpass records, and even internet navigation histories. It’s a real debate that’s going on, and that should go on, because those histories are not only more informative in and of themselves than simple telephone numbers are, but the location information isn’t as distinct and divorced from content as telephone calls are. In other words, contemplate “luds” that include recordings of the telephone conversations, and relying on the discretion and good will of the people having the information as the sole bulwark against those conversations being listened to. We, as a society that is rooted in certain protections against governmental search, do need to discuss how those protections apply to modern technology.
Yet even if we conclude that more protections are needed against unwarranted reading of emails and listening to telephone conversations, and even if we emplace stronger safeguards against the reading of content, there is evidence to indicate that protections for content are insufficient bulwarks against governmental intrusions into our privacy. A recent study found that metadata alone can be used to determine all sorts of personal and private information about individuals, that systematic “connecting of the dots” can reveal medical conditions, use of particular products (including illegal ones), use of particular services (including illegal ones and ones that might be embarrassing), firearms ownership, political affiliations and activism, support of particular causes, the existence of marital issues or infidelity, pharmaceutical use, psychological issues, etc. Pondering this a bit further suggests that metadata could be used to track movements, build behavior profiles, determine networks of friendships, and so on and so on.
When I read this study, I recalled a security briefing from my engineering days. Back then, I had a security clearance and worked on programs with classified information. We were cautioned strongly and repeatedly about conversing on the telephone, and a very specific example was presented about how a “black” program’s product was reconstructed with alarming detail merely by listening to unclassified telephone conversations between people on the program who knew not to mention anything classified on the phone. The ability of determined people to “connect the dots” was made obvious and stark during that briefing, and it instilled a greater level of caution in us. This was 25 years ago, when computing power and information gathering was a tiny fraction of what it is today.
Private companies engage in exactly the sort of profile-building that this metadata study revealed. Through various forms of data collection, they figure out individuals’ buying habits and preferences, demographic information and the like, and use it for targeted advertising and other commerce-related activities. The critical differences between what the private sector does and what the government is doing are that 1 – you can opt out of the private sector data collection in various ways (use a search engine that doesn’t collect data instead of Google, don’t put personal info on social media sites, use cash instead of credit cards for purchases, etc), 2 – the private sector doesn’t have the government’s access or data gathering power, and 3 – the Bill of Rights applies to the government.
Metadata may seem innocuous, and its collection is certainly being “sold” to the public as innocuous and unintrusive, but the reality is very different. As our lives become more and more connected, the government’s ability to develop more and more specific assemblages of data about us simply from metadata grows. Is it hard to imagine that some of that information might be used against us in agenda-driven and unscrupulous ways? Is it unfathomable to contemplate someone’s frequent visits to a wine shop used to unfairly portray him as a drunk in a political campaign, or in a divorce/custody battle, or when looking to buy a firearm, or when applying for a job? Could metadata be used to unfairly paint a picture of someone as psychologically unstable, and use that portrayal to force treatment upon him? Could one’s presumed eating and exercise habits, cobbled together with metadata, be included against his will in medical profiles and insurance assessments? What if the information gets “out?” What if government fails to protect its profiles of us from hackers or inadvertent leaks. It has happened many times and will certainly happen again. Is there any un-ringing of that bell?
Metadata is not innocuous, nor is it impersonal. The destination, time and duration of a single phone call may not reveal much or anything at all, but when aggregated and analyzed, may tell the government a whole lot more than it’s entitled to know. Privacy is hard enough to protect even with strong constitutional safeguards against unwarranted government snooping. Don’t willingly give even more of it up by ceding the argument on metadata.
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