When the news of the latest, and some might argue greatest, overreaching surveillance effort by the U.S. government broke, my initial response was a half-yawn. Phone records? Whoo-hooo. The NSA will now know exactly how lonely my life is.
Actually, they won't. Verizon is too dang expensive.
Then we learned that more than phone numbers were involved. The NSA has been subpoenaing metadata, from phone serial numbers to GPS locations. This is more than "how many times did he call Pizza My Heart?" This is every call, every GPS location, and even every cell tower that your phone connects to, transferred to the government's computers daily.
This isn't 1984. This is Enemy of the State.
1. The Data is Not Simply Numbers
In U.S. v. Maynard, the D.C. Circuit addressed what one might be able to discern from GPS tracking:
"A person who knows all of another travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups and not just one such fact about a person, but all such facts."
The metadata sought by the government explicitly excludes personal identification, except, how many public records don't have your phone number? Applied for federal benefits, a driver's license, or a student loan lately? You probably included your phone number.
If the NSA computers are powerful enough to dig through every cell in America's metadata, they can certainly handle a little cross-referencing to public records databases.
2. Bush Did it First
Senator Diane Feinstein told the Guardian, "As far as I know this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the [foreign intelligence surveillance] court under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress."
Unfortunately, saying, "the Republicans did it too" doesn't make it right, nor does "Judge OK'd it" ensure legality.
3. It May Not be Legal
The statute allowing such intrusions into Americans' privacy, 50 USC § 1861, requires "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation... to ... protect against international terrorism ..."
Relevance, most would agree, is amongst the vaguest terms of legal art. Anything could be arguably relevant to a terrorism investigation. That is why discretion is generally vested in judges to make reasoned decisions. We'd be curious to know if there was any reasoning used at all when the judge approved tracking every Verizon-serviced cell phone in America.
Finally, note that the statute requires "minimization procedures" to be adopted by the Attorney General. These are supposed to detail retention and dissemination of information concerning "unconsenting United States persons" and presumably would limit the amount of time the NSA can store the data (though there is no specific time limit in the statute).