I thought I was up on newspeak vocabulary until the exposure of the word “metadata” by a former National Security Agency (NSA) contractor, Edward Snowden. Snowden spilled the beans to the Guardian publication that the NSA was collecting “metadata” on everyone using Verizon communications. “Metadata” was a new one on me. What is it , does it help keep us safe, and is it constitutional?
In these days of modern computerized technology, the ability to collect and store data has been amplified multi millions of times. Such is the metadata the NSA has been collecting on Verizon telephone calls. It contains dates, times, location, and the telephone numbers to and from, but it does not contain the content of the calls or the names associated with the numbers. It is an index used by US intelligence officials to connect dots on terrorist networks in and out of the US that some or to spot patterns of calls to certain numbers. To get the substance of the contact, a warrant (court ordered permission) would have to be issued by the secretive FISA court, with specifics of who, what, and why , evidence of probable cause or reason to believe the suspected number was connected to a terrorist. The right to conduct such a surveillance is an interpretation of the Patriot Act of 2002.
To what extent does collecting metadata protect us?.We have been given two examples, the Zazi attempt to bomb New York subways and David Headley, connected to the Mumbai bombing. We have been promised more examples of where such surveillance stopped attacks.
What was curious about a subsequent statement of Snowden was his carefully worded claim that "I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email. “ It appears he is referring to his alleged authorization, but inability to tap phones due to a lack of email addresses. But for some shrill talking heads on media to claim with certainty that Big Brother was” listening to your telephone conversations”is misleading, given what we know so far.
Is the telephone metadata collection and storing unconstitutional? The ACLU filed a lawsuit against the US government last week in federal district court arguing that the telephone metadata program is in violation of the First and Fourth Amendments of the Constitution and that the government’s interpretation of the Patriot Act is wrong. The US Supreme Court will be ultimate decider, but on the issue of Fourth Amendment rights, the ACLU faces an uphill fight. In 1979 Smith v. Maryland, the Supreme Court held that the use of a register (telephone numbers of calls made and received)was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. The Supreme Court rarely reverses prior decisions, so that chances are collecting telephone metadata without a search warrant will continue to be constitutional.