Monitoring Metadata

It appears that the NSA wiretapping is somewhat broader in scope than even I had been led to believe. A database is being compiled of every single phone call -- and I can only assume every single e-mail -- that is either originated in or received in the United States. Eavesdropping is apparently not part of this program, so the contents of your calls (and, presumably, e-mails) are not part of the inquiry. But the fact of the phone call is.

So, here's the question of the day. Let's say that TL, who is a citizen of the US, has a friend -- let's call him "Xavier" -- who is also a citizen. TL lives in Knoxville; Xavier lives in, say, Dallas. Neither TL nor Xavier are suspected of any criminal or terrorist activity (although TL has been known to make subversive posts on the net from time to time, critical of the Administration, which in the minds of some people makes his loyalty to the country suspect).

If TL wishes to communicate with Xavier, he has several options. He can write Xavier a letter and send it by a variety of postal services. FedEx, UPS, the ever-disappointing DHL, and even the U.S. Postal Service can deliver the letter to Xavier in one day for a few dollars. Or, the U.S. Postal Service can send it via first-class mail within several days. If this is the chosen mode of communication, there is little doubt that the fact that a letter has been sent from TL to Xavier will not be recorded by the government; the existence of the communication is private.

TL might call Xavier on the telephone. According to the latest information, the contents of the communication are not examined or recorded by the NSA or any of its computers. But the presumed identity of the callers, the time of the call, the call's duration, and the physical mechanisms used to make the call are recorded. By "physical mechanisms" I mean whether the call was made from a land line or a cell phone. Either way, it is possible for the data thus gathered to reveal where TL was located physically when he made the call, and where Xavier was located physically when he took it. That information is being stored.

TL might also send Xavier an e-mail. Again, the metadata about the e-mail is at least as interesting as the content of the e-mail. Excluding the content of the e-mail from the NSA's analysis, the NSA still likely records the time of the e-mail, various information about the format and any attachments, what internet nodes was used (indicating where the author and recipient were) -- all the same information about the communication that delicately skirts around what is actually being communicated.

Does TL have a privacy right in the "who," "where," "when," "how," and "for how long" of his communications to Xavier, so long as the government keeps its eyes and ears out of the "what" and "why" parts of the communication?

Privacy falls within two general categories: the right to autonomously make personal decisions affecting one's life, and the right to control access to information about oneself. Both are part of the "right to be left alone." Both facets are at least implicated by governmental intrusion on privacy -- the monitoring program might chill otherwise free communication simply from the knowledge that the recordation program exists.

The most objectionable part of the domestic wiretap program was that somebody was listening in on the conversations of American citizens under circumstances in which they had a reasonable expectation of privacy, and for which no judicial authorization was given. But this is substantively different -- the content of the communications has been removed, with nearly surgical precision, from the government's data-gathering information.

As the hour is late, and the question very ambiguous in my mind, I shall need to reflect further on this point. But I may have to conclude that, particularly with cell phone calls and other communication that utilizes public resources, the "when," "how," and "how long" information -- and maybe even the "who" and "where" information, is not subject to reasonable expectations of privacy nor does the recordation of the use of those public media indicate any likelihood of chilling communication itself.

I don't even know right now how I want the issue to be resolved. It makes me uncomfortable, but not nearly as uncomfortable as the programs that include eavesdropping. I want the government to have the information it needs to protect me, and I want the government to protect and respect my privacy. I believe that both objectives can be realized. What I just haven't thought through yet, since this information is still new to me and I'm not thinking at a 100% level right now, is whether this program will achieve either, or both, of these objectives.

More thought on this in the next few days.