We learned this month that the US government is collecting vast quantities of “meta-data” from phone and internet service providers. Actually, that’s not strictly true, the program dates to 2007 and was reported in the Wall Street Journal in 2008. This program is much wider, but not as deep, as the Bush administration’s Terrorist Surveillance Program (TSP), called “warrantless wiretapping” by its critics. The TSP applied only to calls involving parties outside the US who were specifically suspected of terrorism. The present program – also started during the Bush administration – does not extract the content of calls, but records where and when calls were made. It is not fully clear what data is retained regarding emails or website usage.
So why is this matter in the news now, when there have been two presidential and three congressional elections since it was first reported? One reason is the melodramatic showmanship of Edward Snowden who leaked the information and then fled to Hong Kong – one of the freest and (not coincidentally) richest territories in the world, but where freedom depends not on constitutional protections but on the whim of the Chinese government. Does he imagine he is safer there? Have constitutional liberties been so eroded since Barack Obama became president that leaking information which was freely reported under Bush puts Snowden in fear of his life?
Snowden claims the program is illegal. The last time the Supreme Court spoke on the question it differed with Mr. Snowden’s opinion. The trouble is that the last time the Court expressed an opinion was in 1979. Mr. Snowden’s expertise on constitutional law may be inferior to that of Harry Blackmun (1908-99) but his expertise on email and of the data routinely gathered by Google, Facebook and Twitter must vastly exceed that of the very distinguished, but late, constitutional scholar.
The 1979 case, Smith v Maryland, turned on whether the police, by asking the phone company to monitor what numbers one of its subscribers dialed, had subjected him to an unlawful search. Blackmun, writing for a 5-3 majority, concluded that it was no search at all. The matter swung on whether a telephone subscriber had a “reasonable expectation of privacy.” Blackmun’s conclusion was that there was no such expectation. Subscribers must realize that the phone company kept records for the purposes of billing since – in the case of “long-distance (toll) calls” – they would see the calls recorded on their monthly bills.
Even if Edward Snowden (born 1983) had read this opinion, he might have struggled to understand it. What is this distinction between “long-distance (toll) calls” and other calls of which the Court speaks? Anyone sending a Morse telegraph would presumably expect that the telegraph operator would be privy to the content of the message. But what does that have to do with the question of how much data Google and Facebook gather from users?
Can American citizens rely on the protections of Smith vs Maryland when the technology of the case seems almost medieval?
Surely it is high time this matter returned to the courts, so that judges can declare whether such a measure is, indeed a search or seizure, and, if so, whether it is an unreasonable search or seizure. Today’s meta-data is of a different type and the matter deserves public judicial review.
Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com
Filed under: U.S. Politics
