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.

  1. DrewInWisconsin

    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.

  2. Dan Hanson

    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.

  3. DrewInWisconsin
    Dan Hanson:

    These laws need updating.

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

  4. 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.

  5. DrewInWisconsin
    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.

  6. Dan Hanson

    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.


  7. Dan Hanson

    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.

  8. Dan Hanson

    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.

  9. Tobias Vaughn

    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?

  10. Mafuta Kizola
    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.
  11. Brian Watt

    And what of Prism?

  12. Spin

    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.   

  13. John Hanson

     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. 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.

    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. Mark

    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. Ken in CT

    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. dicentra

    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. Eric Wallace
    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. Chris O.
    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.

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