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Jack L.B. Gohn: Our metadata, ourselves

Sen. John McCain recently expressed surprise that young people see Edward Snowden as a hero. It’s surprising he’s surprised. When, thanks almost exclusively to Snowden, we have learned of the existence of huge government programs that impinge drastically upon everyone’s privacy (in their Internet communications, their telephone calls, their mail and their own computers), and we see the price Snowden has had to pay, is it any wonder there are people who think of him as a hero?

These revelations renewed important questions about government secrecy and personal privacy, questions we urgently needed to have a debate about, and until Snowden’s revelations, we lacked anything close to adequate facts to have that debate intelligently.

When the revelations occurred, the security establishment’s apologists went on the counteroffensive, contending that disclosing the information that would enable the debate would destroy the usefulness of the subject debated. James Clapper, director of National Intelligence, said as much (after trying to forestall public awareness by lying to Congress). If terrorists or hostile governments know we can listen in, they’ll change their tactics, goes the argument.

Well, up to a point. But if there really is no way to communicate unheard via any medium because the NSA has access to at least some information about every phone call, email and piece of snailmail, isn’t it just as likely the bad guys may just give up communicating in any way except face-to-face? And isn’t chilling their communications also a victory? Be that as it may, the counteroffensive argument assumes what is to be determined: i.e. that listening in on bad guys is so desirable, it justifies listening in on everyone else. Bad as the bad guys are, could it not be rational to decide the cost is still too high? And how could we ever meaningfully decide that point without knowing the facts?

In weighing the cost, the critical fact, I’d submit, is the scale. Think about this gem we got courtesy of Snowden’s leaks: a November 20, 2007 legal memo from Assistant Attorney General Kenneth Wainstein, to Michael Mukasey, then the attorney general, justifying the NSA “analyzing” the metadata it was sucking up. Dismissed early in the memo as hardly worthy of discussion was the notion that there might be an unconstitutional search and seizure going on. The theory being that we don’t have a “reasonable expectation of privacy” in the metadata: in the fact that calls are made from Point A to Point B, and last certain lengths of time; in the fact that Computer C sent Computer D a message of a given length on a given date; in the information shown on the face of the envelope when a letter is mailed. So it doesn’t rise constitutionally to the level of a search — says the memo.

We can fully acknowledge that there is a lengthy stream of Supreme Court rulings to justify each of these propositions, but this is all case law relating to individuals. And when you change the scale of collection and analysis, you change the meaning of those acts. You flip what’s normal; it now becomes the norm that the government has everything. And in the face of the new norm, it can indeed be said that we lack any reasonable expectation of privacy.

This is new. True, we have always known that the outside of any envelope we place in the mail can be seen. We have always known that the phone company had access to “pen register” information, and that the bits and bytes that make up our emails are “known” to the various providers transmitting them. But we also did expect that the keepers of the media would take no interest in our metadata, would in fact be bound by rules of confidentiality, and that they would not only safeguard the contents of the communications, but also, to the extent practical, the fact of the communications too. We certainly didn’t think that the metadata would be analyzed by a government agency.

The metadata is tremendously revealing about our private lives. When you analyze whom we call and when, odds are you know what the call was about. When you know as much as an Internet service provider does about what we search for or whom we write to, you can frequently surmise things about us we would not share with our friends or spouses. Know our metadata, or worse, analyze it, and you may well have plumbed the depths of our being. So our expectations regarding metadata were expectations of privacy.

For the moment, it appears that the government is largely proceeding via warrants, and warrants, as we know, are sought on the premise that reasonable expectations of privacy exist. But warrants for everything about everybody do erode what we can all reasonably expect. Warrants or no warrants, these programs are likely permanent, with permanent effect on us.

And the effect is this: In order to have a meaningful life, we must communicate, generating metadata available to the keepers of the media. The new expectation, however, will be that the keepers will turn all metadata over to government agencies who will analyze it. Therefore, the price of living a meaningful life will be surrender of any privacy we might think resides in unanalyzed metadata. And since the metadata are pretty much the whole ballgame in terms of secrets we’d like to keep from government, we can henceforth expect to keep no secrets from the government — and the Fourth Amendment will be close to a dead letter. (No reasonable expectation of privacy means no way to violate it and hence nothing for the Fourth Amendment to do.)

President Obama’s recent attempt to reassure us that only the metadata was normally being read makes a distinction without much of a difference. The metadata are the whole privacy ballgame. And even if the current administration behaves responsibly with the metadata, it has forged a tool for blackmail and tyranny. Who could expect the data would always be used properly in a country that gave us the Alien and Sedition Acts, the Trail of Tears, the unlawful imprisonment of Confederate sympathizers, the World War I Red Scare, Prohibition, the Japanese internment in World War II, the Cold War Red Scare, the prosecutions of Freedom Riders, Watergate and Guantanamo?

As Justice Powell aptly observed a generation ago, the exercise of First Amendment rights seems to provoke surveillance that raises Fourth Amendment problems. In United States v. United States District Court (1972), he wrote for the Supreme Court: “History abundantly documents the tendency of Government … to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.”

If the government successfully establishes universal surveillance, this effectively abrogates as to communications the “Fourth Amendment protections” Powell mentioned, and the consequences for dissenters and nonconformists will foreseeably be disastrous.

Maybe, just maybe, Snowden helped head this off. I’d say that was pretty heroic.

The increased surveillance probably does save American lives. But the cost of those saved lives in lost privacy may not be worth it. Our assignment now is to discuss it. And thanks to Snowden, we can have that discussion.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at www.thebigpictureandthecloseup.com