Friday, June 14, 2013

NSA Phone Data "Lock Box" and the "Reasonable" Test of Smith v. Maryland

In light of current data mining technology and the reported abuses by government entities with private data (see update below), it's time for Congress to review the "reasonable" expectation of privacy established by the Supreme Court in the 1979 Smith V. Maryland  decision with regard to phone records.

Following his appearance on ABC News This Week spuriously justifying the warehousing of phone record data at the NSA on the financial burden it would impose on phone companies, Congressman Mike Rogers was interviewed on Fox News Special Report.  Here's a partial transcript of a new/added justification for the warehousing of the data at the NSA (emphasis added):
...So, If you tell Americans there's a lock box; this is information that doesn't belong to you by the way. Think of this. When you put your trash out on the curb a law says that it is no longer yours; no expectation of privacy. Your billing information when it goes; this is not your name by the way. It's not even subscriber information. It's just phone numbers in a big box; a database. Just phone numbers. No names. No addresses. Nothing. 

And so what happens is the NSA gets a tip that this phone number overseas belongs to a terrorists and it has another phone number in it where they don't know the origin. They go go through a whole series of steps, court ordered steps, to even access the box that is only phone numbers; no names. Punch it in and guesss what comes out?

It could be nothing or it could be three or four different phone numbers. They still don't even know the names. If they think that's a domestic phone number they have to give it to the FBI to conduct an investigation that has all the rights and protection of U.S. citizens...
The 1979 Supreme Court decision Smith V. Maryland established that phone records held by the phone company did not have a "reasonable" expectation of privacy.  This is the basis for Congressman Rogers' "trash out on the curb" assertion with regard to phone records.

Looks like the details of the NSA collecting phone record information has been hidden in plain sight since 2006: May 11, 2006: USAToday: NSA has massive database of Americans' phone calls It's not surprising that even some in law enforcement find this troubling.  In 2006 The Chicago Sun Times reported 'Your phone records are for sale' and noted the following:
The Chicago Police Department is warning officers their cell phone records are available to anyone -- for a price. Dozens of online services are selling lists of cell phone calls, raising security concerns among law enforcement and privacy experts.

Criminals can use such records to expose a government informant who regularly calls a law enforcement official.
Technology has changed since 1979 in ways that allow a deep profile to be developed for individuals. Congress has already passed some privacy laws for control of data in the private sector.  That same concern for potential abuse should be extended to the government sector in light of the Fourth Amendment.  It needs to establish a new level of "reasonable" expectation of privacy and clearly state that phone records themselves can't be accessed without a search warrant.



Post a Comment

<< Home