By Paul Rosenzweig, The George Washington University Law School
The concern with the Section 215 metadata program is not just with the collection of metadata. It is also with the fear that, as the Privacy and Civil Liberties Oversight Board said, “When aggregated with other information and subjected to sophisticated computer analysis, the government’s collection of a person’s entire telephone calling history will have a significant and detrimental effect on individual privacy.”
USA Freedom Act
When it comes to the the Section 215 metadata program, concerns regarding Privacy and Civil Liberties are further exacerbated when the data is stored for a period of time in the government’s database where it can be rapidly accessed and searched.
In responding to these concerns, Congress has substantially revised the section 215 metadata program in a bill known as the USA Freedom Act. Under the Act, the law was changed to stop the NSA from continuing its mass phone data collection program.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
FISA Court Authorization Mandatory
The USA Freedom Act also made two principle changes. First, instead of the data being collected in a government database, phone companies would now retain the data in their own databases. They would also not be required to hold the data for any longer than their normal business practices require, which is typically around 12–18 months.
Second, after the law took effect, the NSA would be able to obtain information about targeted individuals only after authorization from the Foreign Intelligence Surveillance Act court or the FISA court.
Learn more about a modern conception of privacy.
Proving Reasonable Articulable Suspicion
In addition, before a particular phone number is selected for analysis and targeting, the government would have to show the court a reasonable articulable suspicion for why that phone number might be connected to foreign intelligence or terrorism.
The most obvious civil liberties is that the government would no longer have a large-scale database on all Americans. Many think the creation of such a database was a fundamental shift in America—one that might have changed it in a core, almost inexpressible way.
Threat to Privacy
Because the government has a monopoly on the lawful use of force in society, it also represents a unique threat to the liberty and privacy of citizens in ways fundamentally different than potential threats to privacy and civil liberties posed by corporate data collectors. One worries that the government’s collection of metadata for one purpose might be, in the future, be repurposed to a less well-justified end.
Abuse tends to be insidious, proceeding incrementally. And even if one thinks the chances of it are remote, the history of intelligence-related ethical lapses by the US government—and by more authoritarian countries—should give us all a pause.
If one thinks that the corrective mechanisms of US governance are strong, we must acknowledge that a risk of abuse is nonetheless more than merely theoretical. And that leads to a second order. One tends to worry that even the fear of potential abuse can have an indirect effect on freedom and liberty.
Disfavored Activities
Some argue that the creation of a telephone records database could have a chilling effect on the free exercise of speech and association. According to this argument, those who engage in controversial activities might not trust the government to honor their rights to privacy. Note importantly, that this concern is not about the privacy of unlawful activity. It is about the privacy of lawful but, perhaps, disfavored activity.
Concerned about their liberty and privacy interests, social activists and even non-activist dissidents might either forgo perfectly lawful private activities or modify how their conduct in very costly ways, for example, having in-person meetings instead of communicating by phone.
NAACP v. Alabama
One obvious example where the fear of government intrusion on private conduct might apply is in the communications between, for example, journalists and their confidential sources.
Consider, as just one small example of this problem, the litigation known as NAACP v. Alabama. The case comes from the civil rights era of the late 1950s. The NAACP, or National Association for the Advancement of Colored People, took a position strongly in favor of desegregation, and the end of discriminatory Jim Crow laws.
Alabama—under the guise of corporate governance—demanded that the NAACP turn over its membership list. The NAACP was, understandably, skeptical of Alabama’s intentions and sought protection from the courts.
Protected Freedom of Association and Speech
The U.S. Supreme Court unanimously ruled that membership lists were an aspect of the protected freedom of association and speech and that the government could not demand that the records be produced.
With that as a background, consider this question: How does one feel about the US government using call record metadata to identify, say, the membership of the local tea party? Or the local moveon.org group? For obvious reasons, many see this as also problematic.
Learn more about surveillance and the rule of law.
Commercial Data Aggregators
We should not see the distributed system—where the phone companies keep the call data—as a complete panacea. For one thing, requiring the phone companies to hold the data increases the ability of commercial providers to analyze the data—and some people have even less confidence in commercial data aggregators than they do in the government.
For another, the requirement will inevitably make government less efficient at scrutinizing potential terrorist activity. That’s a cost that comes with a distributed database that one would have to accept as the price of increased privacy.
For now, the Congress has made that judgment, in response to the concerns of the American public. Only time will tell if the choice was a wise one.
Common Questions about Metadata and Civil Liberties
Under the USA Freedom Act, instead of the data being collected in a government database, phone companies would now retain the data in their own databases.
According to the USA Freedom Act, the NSA would be able to obtain any information or data about targeted individuals only after authorization from the Foreign Intelligence Surveillance Act court or the FISA court.
Alabama, in the NAACP v. Alabama case—under the guise of corporate governance—demanded that the NAACP turn over its membership list.
