What in the world is Metadata....defined and defanged.

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?

 The online Merriam Webster dictionary defines Metadata as “data that provides information about other data”. The first known use of word “metadata” was in 1983.

In fact, I was employed in “metadata” as a college student working in the central circulation file of the library filing Dewey Decimal system index cards.  There were card catalogues full of 3x5 cards, filed in a particular order.   You gave the card to a clerk to fetch a book, or you made a note of the decimal that gave you the location in the shelves and found it  yourself.  These cards were metadata, information about an author or a title, but they contained no  cliff notes of the contents of the publication. I still had to do the grunt work of reading  the book.
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.

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How much freedom are we willing to give up to stay safe? Courts may decide for us

How much personal freedom are we willing to give up in the name of homeland security? That’s the political question that erupted last week. The underlying legal question is whether interpretation  and application of the 2002 Patriot Act  passed to protect us from terrorist attacks   is constitutional.   In the long run, the Supreme Court may make the decision for us.

 At issue is the potential violation of the 4^th Amendment to the Constitution  which requires warrants for  search and seizure  that are based on probable cause  and have specifics that some violation of law is suspected.   The 2002 Patriot Act authorizes some types of warrantless searches.

Details of the workings of the Patriot Act  had been kept hush hush until a  British publication, the Guardian, opened the worm can.  It published leaks from a former National Security Agency (NSA) contractor that warrantless gathering of information  was conducted on all of Verizon’s telephone calls (Sprint and AT&T, too, revealed later) and that there was surveillance  contents of  internet communications of suspected terrorists and their connections abroad.

Colorado has become a high profile  focus  of  the  debate.   Colorado Democratic Senator Mark Udall, member of the Senate Intelligence Committee,  has consistently voted  and spoken out against    the Patriot Act,  because he objected that  warrantless telephone call metadata mining was  kept secret from the public and  was conducted on telephone customers whether they had terrorist connections or not . On CNN Sunday  Udall told Candy Crowley “that it was not clear the program gave information that could not be found elsewhere” in thwarting attacks .

 Others including the President   believe the telephone metadata program is helpful . CBS News Saturday reported that the telephone metadata collection enabled the  apprehension  of Denver resident Najibullah Zazi  before he could carry out a  plot to bomb the New York City subways in 2009.

It seems creepy to know even  limited phone data is being collected and it leaves many, including me, with a gnawing fear that someone in the future could get their hands on the data base to use it  for witch hunting.

Another  surveillance program  exposed by the Guardian is called PRISM. It allows the NSA to tap into  the content of internet communications of suspected terrorists abroad, including the content of those communications of non US citizens in the US communicating with them. Warrants are issued by the Foreign Intelligence Surveillance (FISA) Court  good for a year.  While acknowledging PRISM’S effectiveness in thwarting  terrorist attacks, Sen. Udall objected anyway since “some Americans have been swept up in it”.  The administration expressed outrage that exposing  PRISM  damaged American’s security interests.

Trusting the user is not enough; are the controls enough to protect us from abuse?.

What is  this  FISA court, anyway?  Eleven judges are appointed by the Chief Justice of the Supreme Court  for seven year terms.  It works in secret and deals with classified information related to terrorism, in order not to  blow the cover off covert operations and tip off suspects. The Court informs the Senate and House intelligence committees of their rulings. The telephone metadata mining is reauthorized every three months.

 Wide spread  collection of telephone metadata is limited to numbers, length, date, and location, though customers’ names are not collected.  To access content or conduct wiretaps, warrants still must be sought from the FISA court.

This is still a dangerous time .  The Boston Marathon Bombing, the Ft Hood shooting, and the nearly successful Times Square and New York subway bombers involved difficult to detect  lone wolves living in the US.  We would not like to handicap our government agents executing their  mission.

Civil libertarians, left and right, are not waiting for Congressional action. They are threatening to take the issue to court which will ultimately decide the constitutionality issues.

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This is a version of my column which will appear in the www.skyhidailynews.com this week