Secret court declassifies opinion providing rationale for metadata sharing

[Ohio Joe]

For the first time, the United States’ most secret court, the Foreign Intelligence Surveillance Court (FISC), has published its legal rationale as to why the telecom metadata sharing program under Section 215 of the PATRIOT Act is legitimate. The 46-page opinion was authored August 29, 2013, but was not published on the FISC’s website until Tuesday.

The opinion was only now published due to FISC judge Reggie Walton, who ordered the government to conduct a declassification review of such decisions and related orders in the wake of the leaks provided by former NSA contractor Edward Snowden. As a result, this August 2013 order and two others have now been declassified. Walton's declassification order was made at the request of Judge Claire Eagan, who herself authored those opinions.

In her opinion (PDF), Judge Eagan wrote that because terrorists use phones (or in legal-speak: “telephonic systems”) and some of those phones traverse the United States’ phone network, metadata is therefore considered the business records of the telecoms involved.

In 1976, the Supreme Court ruled in a landmark case, known as Smith v. Maryland, that when someone calls a telephone number, that number has been disclosed to a third party (the phone company). Therefore, the Supreme Court held, it is not private (because it was disclosed through the act of making the call), and the government can have easy access to those call records—this is the origin of the "third-party doctrine." So, Judge Eagan concluded, if the handover of one person's phone records in one instance is legal, so too is the wholesale handover of phone metadata en masse.

http://arstechnica.com/tech-policy/2013/09/secret-court-declassifies-opinion-providing-rationale-for-metadata-sharing/

I agree with the first comment I saw:

"When I send a letter in the post the address is disclosed to a third party and yet they still need a warrant to look inside. How long is it going to be before that third party doctrine is used to strip everyone of their right to privacy?"

A bullshit justification to spy.

[The Magistrate]

1. That Comment Is Poorer Than You May Think, Sir

A mailed envelope conveys a good deal of data. It will have the sender's address, usually. It will have a post-mark, giving a time and location at which it went into the postal system, which can certainly provide clues as to where and when it was actually put into a mailbox. Further information may be evident even from the characteristics of the envelope. In short, there is a good deal of 'meta-data' attaching to a letter put into the mail, somewhat analogous to the records associated with a telephone call, which are not the contents of the call, any more than the letter is opened.

[Ohio Joe]

3. I get what you are saying... I was looking at it in a different way...

I'm thinking in much more along the lines that we can't/should not have to keep any communications we do outside of conventional methods so we don't have to worry about guilt by association. When electronic meta-data is scooped up, it is not that hard to use it to start tracing routes... If electronic communications were as singular as regular mail or a phone call, I don't think I'd have as big an issue but it I see it as far different in that once something is sent, it goes completely out of your control and you have no idea where it is going to end up... I don't think that should be used as any kind of reasoning to allow viewing of contents.

[unblock]

2. the meta data is more analogous to putting a tail on someone

and following their every movement while out and about. not looking inside their house, but making a note of everywhere they go, every store they enter, every thing they buy, etc.

the argument being that hey, you're out and about in public, and any transaction you made you did with someone else, so if *they* can know it's not really private and so therefore the government can know.

this is still an extraordinarily narrow definition of what's actually private, limiting it to simply the actual content of calls, the words in your diary, etc.


so for instance, all the titles in your porn library are not private information. the fact that you went to a psychologist or to detox is not private information.


the basic idea here is that if anyone on the planet outside your family knows about it, then it's not private and therefore the government is entitled to that information without a search warrant.