Don’t Tread on My Metadata

A much shorter version of my academic piece on the third-party doctrine has just been published on PJ Media. Here are the first three paragraphs. If you have time, please go read the rest, leave comments, share, etc. Any help you can give in getting the word out is greatly appreciated!

“Do you classify Edward Snowden — the former National Security Agency contractor contractor charged with espionage, and runner-up for Time‘s ‘Person of the Year’ — as a hero or a traitor? Your answer likely depends on your opinion of the NSA programs he helped publicize via his leaking of highly classified documents. In this week’s revelations, we learn that the NSA deploys agents to infiltrate online gaming communities, and that it uses the Google tracking cookies we thought were responsible only for that eerie and annoying targeted advertising. We also learned recently that the NSA collects ‘nearly 5 billion records a day on the whereabouts of cellphones around the world.’ Earlier this year, we learned that the NSA has been continuously collecting phone record ‘metadata’ of all Verizon customers for the last seven years. The NSA also accessed email and other forms of Internet communication — including Skype voice and video communications — via a secret program called Prism. Director of National Intelligence James Clapper described these programs as ‘acquiring’ information only about foreigners, and yet ’49-plus percent of the communications [intercepted and stored under the Prism program] might be purely among Americans….’

“Whatever you think of Snowden, his actions have drawn significantly more attention to the NSA’s intrusive programs. Now the question is: will anything be done about them?

“Proponents of the programs have noted that, although data collection is performed without probable cause or particularized suspicion, only transactional metadata, not the content of communications, is collected. Moreover, their proponents continue, these programs make it easier for the government to identify and track suspected terrorists, and therefore strike the right “balance” between privacy and security. In addition, some argue, the programs are perfectly legal: according to the ‘third-party doctrine,’ there is no ‘reasonable expectation of privacy’ in metadata we share with our phone companies, Internet service providers, etc., and the collection of metadata is authorized by the Patriot Act or the FISA Amendments Act.

“The applicability or purported constitutionality of these statutes is, I think, beside the point. The third-party doctrine itself is flawed and should be eliminated.

“In this article, I’ll first discuss the third-party doctrine, including its history and the types of cases to which is has been applied. Then I will propose a better way of dealing with cases typically thought to fall under this doctrine. Finally, I will use the common law of contract to answer the charge that eliminating the third-party doctrine will prevent government from using secret agents in law enforcement.”

Read the rest here.



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3 responses to “Don’t Tread on My Metadata

  1. Your argument is valid but the problem behind it is deeper than holding a right to property and contract. In the original discussion about having a bill of rights, the argument against was more or less as follows. The constitution provides enumerated powers and their limits of applicability for the government. Those powers are few and the limits are quite explicit. However, the rights of We the People are many and unenumerated. The fear was that the bill of rights would be interpreted to be a specification of enumerated rights. Thereby, making a right not so enumerated nearly impossible to defend. The tenth amendment was an attempt to cure this defect.

    Flash forward to our current era and the fear has come true. The Tenth Amendment passes all unenumerated powers in the several states and then to We the People. Unfortunately, the civil war cemented the power of the Federal Government over the states by asserting the notion that Federal law is superior to and supplants/voids state law. This has the effect of passing power over the unenumerated rights to the Federal Government with none left over for We the People to posses. It can be done by the simple act of passing a Federal Law. Thus, today, the rights of We the People are those the Federal Government allows us to have. Even The Supreme Court agrees. (see the eminent domain and Obama Care decisions as case in point) If the government asserts it needs it, it can take it. This condition voids the entire political concept behind the original formation of The United States.

    The application of this Tenth Amendment slight of hand trick allows the Federal Government, at whim, to change what rights we may expect to hold. Because of that, none are inviolate. This is a worse outrage than King George inflicted upon his colonies that fueled The American Revolution. We the People are nothing but chattel owned by the government to be used, abused, and sacrificed at its whim. Further, the only value that We the People have for the government is the degree that we will submit to being sacrificed.

    We may need to have some level of government to keep a civilized society but the one we have is not even close to that level.

  2. Robert

    While the NSA is up to its neck a data swamp, the purveyors of mass destruction will be running communications around on foot, bicycle, horse, motorcycle, plane, boat, etc.

    • Such is the nature of asymmetrical combat. Stealthy low tech solutions can go around high cost, complex, high tech solutions obsessively and blindly applied. High tech must work every time. Low tech only needs to succeed enough to discourage the use of power against it.

      See the success of the colonists against the greatest army ever known as of 1776 in the American Revolution. Especially when the commitment of the command structure of the great army does not have the stomach for devastating destruction as was done by General Sherman that ended the American Civil War and as we did to Japan to end WWII.

      See the Korean, Vietnam, and Afghanistan wars as examples of the contrary. The best that could be said of any of those wars is that we were reduced to a very costly stalemate. This was done with 12th Century tactics because we did not have the stomach to obliterate our opponents, their cities, and their lands. Yet we had the power to turn their entire countries into radioactive green glass. We did not have the moral courage to use that power. Our lives and treasure were spent in futility and without benefit.

      If it is worth going to war, the war must be resolute and total with the defeat of the enemy the primary objective. If it comes down to we or them, it must always be we over them. A tentative and proportional response never works. Appeasement always fails.

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