Verizon Controversy Not As Bad As It Seems

 

I’ll have a piece out soondiscussing the controversy over revelations that the Obama Administration has been collecting data on Verizon phone calls thanks to authorization via a FISA Court. My position is that the data collecting isn’t unconstitutional because the Fourth Amendment only protects the content of phone calls and not information on the dialed numbers, length of the calls, etc.

The full piece is forthcoming, but you can get a deeper analysis of the issue through this 2007 article I published in the George Mason Law Review. I apologize for all of the footnotes, but there are a lot less than in a typical academic article. I promise.

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Members have made 45 comments.

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  1. Profile photo of DrewInWisconsin Member

    Just one more drip in the bucket-full-o-privacy-invasion?

    I didn’t like it then. I don’t like it now. And I don’t even have a cell phone, but I’m watchin’ out for you folks that do.

    • #1
    • June 6, 2013 at 11:38 am
  2. Profile photo of Dan Hanson Thatcher

    In my opinion, recording who was on a call, how long they were on the call, and other ‘metadata’ about the call SHOULD be considered content in the digital age. All of this information can be mined and analyzed using modern information techniques and a considerable amount of knowledge gleaned from it.

    This is an example of how the law has become archaic in the digital age. Another example are laws that allow police to ‘stake out’ your home or follow you without a warrant. In the old days where it took a human being to stake out or follow you, there was a natural limit to how much of this law enforcement could do.

    In the 21st century, ubiquitous cameras and facial recognition software means you could be ‘staked out’ and followed constantly, and this could be done on a large scale. Drones can follow you constantly. That’s chilling.

    And modern technology allows you to learn an awful lot about what someone is doing in their home without ever entering the premises. Just measuring Wi-Fi power can tell you how a person is moving inside a house. 

    These laws need updating.

    • #2
    • June 6, 2013 at 11:39 am
  3. Profile photo of DrewInWisconsin Member
    Dan Hanson:

    These laws need updating.

    Yes, and updated to give us more privacy protections, not fewer.

    • #3
    • June 6, 2013 at 11:45 am
  4. Profile photo of Fricosis Guy Coolidge

    I’m sure they’re doing only legitimate things with that data and aren’t correlating it with visits to say Tea Party rallies, my tax advisor, AP or Fox reporters, or my upcoming adopted son’s reunion.

    • #4
    • June 6, 2013 at 11:53 am
  5. Profile photo of DrewInWisconsin Member
    Fricosis Guy: I’m sure they’re doing only legitimate things with that data and aren’t correlating it with visits to say Tea Party rallies, my tax advisor, AP or Fox reporters, or my upcoming adopted son’s reunion.

    Well, see, that’s why I reject the idea that it’s not as bad as it seems. Because I don’t for a moment trust the people collecting the data, and in fact believe it’s utter foolishness to think this is a harmless practice.

    I can hear the refrain “If you’re not breaking the law you have nothing to fear” issuing from the telescreens already.

    • #5
    • June 6, 2013 at 11:56 am
  6. Profile photo of Dan Hanson Thatcher

    I’m not sure this is the place to go into the details of what can be done when seemingly-innocuous information is aggregated and analyzed, but it’s truly amazing what can be learned about you.

    For example, let’s say you post under a pseudonym at Ricochet. The feds can’t get a warrant to force you to give them the password and let them inspect the content of your posts or find out what your pseudonym is. However, let’s assume that they can get access to IP records for Facebook – no content, just which IPs are connecting, and when. If they know your IP address, it’s a trivial matter to build a pattern for when you’re online and when you’re not. Now they can do a correlation study of all public posts on Ricochet and look for patterns of posting that match the FaceBook usage profile they built. Now they have a good idea who you are on Ricochet, and they know what you’re saying even though you think you’re hidden behind a pseudonym.

    Cont’d

    • #6
    • June 7, 2013 at 1:10 am
  7. Profile photo of Dan Hanson Thatcher

    Now, under this scenario you’d think you already would have to be under suspicion before they’d bother. But they could do the reverse – they could decide that Ricochet posters are a bunch of subversives, and want to discover the identity of as many as possible. So they could built up patterns based on ricochet postings, then match them with data already collected from other web sites. Soon they know who you are, all the web sites you post to, what you say on them (even if you’re doing so under a pseudonym), etc.

    And this just scratches the surface. It’s not limited to governments, either. We all leave huge digital trails of breadcrumbs that can be re-assembled by clever data miners and used to build amazingly detailed profiles.

    During the cold war, Soviet spies used to track pizza takeout in Washington. If more than the usual amount of pizza was ordered in at various government buildings, it told them something was up. By looking at where the pizza went, they could make good guesses as to what that was. In the digital age, this kind of stuff can be done to everyone, all the time.

    • #7
    • June 7, 2013 at 1:16 am
  8. Profile photo of Dan Hanson Thatcher

    In the old days, we had what might be called the ‘anonymity of the crowd’. If you were an honest citizen who didn’t do anything particularly suspicious, you could feel safe from scrutiny. Engaging in activities like stakeouts and following was very expensive, so the police had to have a reasonable belief that you were up to no good before doing so. 

    Today, a zealous government agent or a nefarious business or individual can do sweeping searches of data looking for patterns of suspicious behavior, or even for data that can be used against you. Potential insurers could develop ‘lifestyle’ profiles to assess your health risks, and use that against you. By correlating your activity with others, a government could find out who you associate with and from that determine your socioeconomic status, whether you’re a risk to be a criminal, what kind of behaviors you engage in, what your political views are likely to be, etc.

    Modern data mining changes the whole definition of what privacy is and should be. The law needs to be updated to reflect that.

    • #8
    • June 7, 2013 at 1:30 am
  9. Profile photo of Tobias Vaughn's Eyebrow Inactive

    I’m under the impression that using Tor (“The Onion Router”) is a good way to avoid leaving digital breadcrumbs. I haven’t tried it myself, but I’d be interested in hearing if it’s a good idea (or not). Could all the people concerned about privacy of electronic communications reasonably start consistently using Tor or something similar?

    • #9
    • June 7, 2013 at 1:40 am
  10. Profile photo of Mafuta Kizola Inactive
    I understand that it is legal in the context of the fourth Amendment, but it is still possible to damage someone with only a record of his calls and their durations without accessing the content of the transmissions by cross referencing with his know associates.For example if a married man spend hours speaking on the phone with a women other than his wife it doesn’t take long to make the connection, same thing for associates that would want to stay anonymous for any reason.
    • #10
    • June 7, 2013 at 2:26 am
  11. Profile photo of Brian Watt Thatcher

    And what of Prism?

    • #11
    • June 7, 2013 at 2:34 am
  12. Profile photo of Spin Thatcher

    Apparently the individual mandate is constitutional, that doesn’t make me like it any better either.

    By itself this issue isn’t that bothersome. Taken together with the fact that un-elected bureaucrats are running the country, telling us all what to do and think, and punishing us if we don’t toe the line, it’s frightening.

    Someone should be waterboarded.

    • #12
    • June 7, 2013 at 3:07 am
  13. Profile photo of She Member
    She

    What Dan Hanson said.

    • #13
    • June 7, 2013 at 4:09 am
  14. Profile photo of John Hanson Thatcher

     I think you are wrong. It is worse than you portray. It is none of the Federal Governments business who I call, when, unless I am engaged in a criminal enterprise, where they should have to establish probable cause before getting access to this or ANY other data about me, or any other citizen. Computers make abuse of this knowledge too easy, and what I know about government is that if abuse is possible, it WILL occur. They should never be able to mine general data about undefined sets of people for any purpose. This goes beyond mining data in criminal or civil actions, but extends to medical records, questioning children at schools, census questionnaires etc. In all cases modern technology allows the government to collect too much information about too many people, and we no longer have the protection of anonymity due to the extensive use of computers and data mining techniques. It all boils down to if it can be abused, it WILL be.

    • #14
    • June 7, 2013 at 4:20 am
  15. Profile photo of Chris O. Member

    The problem is it is a blanket surveillance. Warrant-less surveillance is one thing on a phone line where some reason for suspicion is present. There is a “time is of the essence” issue. There are profiles to consider, for example, I don’t have a problem with watching numbers assigned to pre-paid phones.

    Constant recording of call numbers and duration of those calls? What justifies this sweeping order? Has this had a demonstrable benefit? No one says whether it has been useful. The records exist at the carriers if an agency finds reason to “mine” data from specific phone numbers and obtains a warrant.

    Couple this with the discriminatory acts of the IRS and it is here and now an unacceptable use of government authority. Constitutional? Semantics. Like Eric Holder’s testimony about the use of drones in acts targeting American citizens: technically and hypothetically speaking, he thought it would be okay.

    Here we can only speak about technicalities because it is not a hypothetical. If nothing else, this administration has proved beyond a measure of doubt it cannot be trusted with its existing executive powers. The FISA blanket warrant should be rescinded and a better method found.

    • #15
    • June 7, 2013 at 6:32 am
  16. Profile photo of Mark Member

    Prof Yoo is missing the point. As most of us are pointing out the issue is not whether this is constitutional. It is whether it is good policy and proper governance given what we know about government’s natural tendencies to expand its powers whenever it can and not just the potential for abuse, but as we know from recent events, the actual abuse of information in its possession.

    There are certain things I was willing to put up with in the aftermath of 911 but whether that is a good idea on a permanent basis in pursuing a war without end is a different matter.

    In addition the nature of the data is different today. Before the ability to easily amass, analyze and correlate vast amounts of data electronically it was harder for abuse to occur since it required messy stuff like digging through written records and tapes. Now it is handed on a plate to the government and much easier for the government purposefully, or for rogue employees with technical skills and axes to grind, to use for purposes not originally intended.

    I’m with Mothership Greg on this – suspicion is the right approach.

    • #16
    • June 7, 2013 at 6:49 am
  17. Profile photo of Ken in CT Member

    Total Information Awareness (TIA) was rejected when it became public. guess what, they are doing it anyway. NSA is supposed to be restricted from U.S.toU.S. calls, and restricted to calls with an overseas nexus. What happened?

    • #17
    • June 7, 2013 at 7:01 am
  18. Profile photo of dicentra Inactive

    The fact that metadata analysis is a splendid way to find terrorist cells does not, by itself, justify its use. As much as it pains me to disagree with Andrew McCarthy, I must:

    The easy solution here is to couple intelligence gathering with exacting congressional oversight. The Justice Department, the NSA, and other appropriate executive branch agencies must be permitted to keep collecting telephone record information. Their highest responsibility is to protect the nation, and they “cannot connect the dots,” as we demand that they do, unless you let them have the dots in the first place.

    That’s a strong argument for the data analysis. It’s also a strong argument against the 4th amendment; most of what violates the 4th amendment makes it much, much easier to fight crime.

    • #18
    • June 7, 2013 at 7:56 am
  19. Profile photo of Eric Wallace Member
    Doctor Manatee: I’m under the impression that using Tor (“The Onion Router”) is a good way to avoid leaving digital breadcrumbs. I haven’t tried it myself, but I’d be interested in hearing if it’s a good idea (or not). Could all the people concerned about privacy of electronic communications reasonably start consistently using Tor or something similar? · 6 hours ago

    Tor is good, I’ve just recently begun using it. However it’s already being targeted by governments in Australia and Japan. And I can’t find the link right now but someone recently faced charges that were proven, in part, by Tor data. Presumably that data was taken from the defendant’s own computer so identity was already established.

    So by all means, use Tor but no solution will ever be permanent. Never was permanent either but we used to be able to kid ourselves for longer.

    • #19
    • June 7, 2013 at 8:06 am
  20. Profile photo of Chris O. Member
    Eric Wallace: Chris, you realize that in certain circumstances your phone could be tapped via a warrant and you’d never know it (continuously delaying notice)? Or, if the judge felt so generous, you’d be notified 30 to 90 days after the fact? · 8 hours ago

    Edited 8 hours ago

    I understand it. There is no argument I want to make in support of it. As I said, I’m willing to put up with scrutiny if I do something that triggers it. I am not willing to accept any word from the government that the information they are gathering will not be abused.

    If a program to weed out terrorist activity starts with surveillance of every mobile phone and Internet user, then it is already wildly inefficient. How do they find someone if they don’t start with all of us? It’s simple: modify the order so that the phone companies send only the information that fits the profile the agencies are looking for. Let the phone company apply the first filters instead of the government.

    At least I can decide which phone company I trust to be responsible with my data.

    • #20
    • June 7, 2013 at 8:09 am
  21. Profile photo of Mothership_Greg Inactive

    This passage from your paper is too good not to quote:

    It seems that critics are mostly interested in blindly limiting the powers of the government, even as it fights a tough war. They presume the American government to be acting in bad faith, and so all of its activities must be treated with the highest possible level of suspicion.

    Yes.

    • #21
    • June 7, 2013 at 8:19 am
  22. Profile photo of Eric Wallace Member

    Edit: Withdrawing my comment to read the article before posting my response to Mr. Yoo’s post. Mothership Greg gets points for properly shaming me.

    • #22
    • June 7, 2013 at 8:21 am
  23. Profile photo of DrewInWisconsin Member

    Ha ha!

    • #23
    • June 7, 2013 at 9:08 am
  24. Profile photo of Mothership_Greg Inactive

    My thoughts. 1:

    In plain language: the order gave the NSA a record of every Verizon customer’s call history — every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for the phone and call — from April 25, 2013 (the date the order was issued) to July 19, 2013. The order does not require content or the name of any subscriber and is issued under 50 USC sec.1861, also known as section 215 of the Patriot Act.

    2:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Every call made, the location of the phone, the duration of the call… does this seem like a reasonable search to anyone? Probable cause?

    I’m sure this information won’t be abused by any NSA staffers, and if they do abuse their power, they’ll be punished, just like other government officials. Lois Lerner?

    • #24
    • June 7, 2013 at 9:23 am
  25. Profile photo of Mothership_Greg Inactive

    William McMahon? I could go on.

    The Senators claiming that this is no big deal all need to be removed from office, or their minds changed by polling data ASAP. If the American people conclude that this is acceptable, then we’re even more doomed than I previously thought.

    • #25
    • June 7, 2013 at 9:26 am
  26. Profile photo of Chris O. Member

    Eric’s post made me a bit paranoid, so a bit of clarification to my earlier post:

    A (perhaps gross) simplification of the conflict is this: the program as it exists presumes the guilt of every actor and it is only our actions or inaction that the computer algorithms determine whether we fall under suspicion.

    Transactions are one thing. Legally, I concede, that each phone call made on a commercially-purchased electronic signal could be construed as a transaction. When I call Mom and Dad, for broad purposes of Mr. Yoo’s arguments, it could be considered a transaction.

    That is not what is argued. The examples are transactions of equipment that could be used for lethal purpose. Here again, though it is not specified in the paper, a mobile phone could fit the definition.

    The paper addresses communications to foreign numbers. I am all for warrant-less taps and tracking of numbers found in terrorist cell phones. I don’t mind scrutiny if I call overseas. That does not address the issue we discuss today: the blanket surveillance of all communication.

    If I’m honest, I likely have a different view without recent IRS abuses.

    • #26
    • June 7, 2013 at 9:29 am
  27. Profile photo of Umbra Fractus Member
    Chris O.: The problem is it is a blanket surveillance. Warrant-less surveillance is one thing on a phone line where some reason for suspicion is present. There is a “time is of the essence” issue. There are profiles to consider, for example, I don’t have a problem with watching numbers assigned to pre-paid phones.

    Yes. The Fourth Amendment doesn’t protect us from “warrantless” searches, it protects us from “unreasonable” searches. I doubt any objective authority would consider blanket monitoring of every phone call in the US (the likelihood that this is limited to Verizon is extremely low) “reasonable.”

    Even if I concede that the action is constitutional, that doesn’t mean it’s not a scandal. Even as recently as a year ago I might have given them the benefit of a doubt, but in the wake of the IRS, AP, and Rosen scandals, any doubt that they will misuse this data is gone.

    • #27
    • June 7, 2013 at 10:16 am
  28. Profile photo of Eric Wallace Member

    Since the records are held by a third party, the phone company, there’s no 4th Amendment protection so the reasonableness of the search doesn’t matter.

    I should say, this is as far as I know! Don’t mean to be claiming any special authority on the subject.

    • #28
    • June 7, 2013 at 10:49 am
  29. Profile photo of Eric Wallace Member

    Chris, you realize that in certain circumstances your phone could be tapped via a warrant and you’d never know it (continuously delaying notice)? Or, if the judge felt so generous, you’d be notified 30 to 90 days after the fact?

    • #29
    • June 7, 2013 at 10:57 am
  30. Profile photo of 3rd angle projection Inactive

    It’s all harmless. I mean, they’re looking out for our best interest. What can come of it? It’s just meta data. And everybody knows what that is.

    Since you posted “not as bad as it seems”, I expect you to represent me pro bono for any misunderstandings with our benevolent government. Thanks! You’re the best. I can sleep easy tonight.

    BTW, What’s that smell? Coffee? Hmmm.

    • #30
    • June 7, 2013 at 11:59 am
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