The panel of experts charged by President Obama with advising him on intelligence reforms is making waves with its call on Wednesday for an array of significant changes to how the National Security Agency mines data and uses it to conduct surveillance. What’s especially striking about its report, though, is just how strongly one of the panel’s proposed changes echoes the bombshell decision of Judge Richard Leon earlier this week, in which he found the NSA’s collection of “telephony metadata”—the information about whom you call and receive calls from, for how long, and from where—was probably unconstitutional.
Judge Leon has been criticized for overstepping because, as a District Court judge, he is bound to follow the Supreme Court’s 1979 decision in Smith v. Maryland. In that ruling, Justice Harry Blackmun wrote for the majority that the police could demand a suspect’s phone records from his phone company without a warrant. “We doubt that people in general entertain any actual expectation of privacy in the numbers they dial,” Blackmun explained and, even if they did, he added that that expectation was not “legitimate” because the records were voluntarily provided to the phone company when people made calls.
Obama’s panel noted that its charge was not to interpret the Constitution, but to make “sound public policy.” In that regard, it minced no words in describing the Supreme Court’s conclusion in Smith as “both unrealistic and unsound as a matter of public policy.” It’s worth reading what the panel had to say in full:
In modern society, individuals, for practical reasons, have to use banks, credit cards, e-mail, telephones, the Internet, medical services, and the like. Their decision to reveal otherwise private information to such third parties does not reflect a lack of concern for the privacy of the information, but a necessary accommodation to the realities of modern life. What they want — and reasonably expect — is both the ability to use such services and the right to maintain their privacy when they do so. As a matter of sound public policy in a free society, there is no reason why that should not be possible.
In other words, the panel echoes the core of Judge Leon’s conclusion—namely, that even though people are disclosing more about themselves than they did previously, we actually expect a greater degree of privacy in what we’re disclosing. At first blush, the notion that more disclosure should mean more privacy seems counterintuitive, if not downright paradoxical, as Barry Friedman and Dahlia Lithwick explained in Slate on Tuesday.
But here’s the thing: The numbers about how people actually feel tend to back up the conclusion of the Obama administration’s panel and Judge Leon’s opinion. Half of all respondents to a recent survey by Pew Research concerning attitudes about privacy and internet said they are worried about the information that is available about them online. That number is up from 33 percent in September 2009. In other words, according to Pew, “There is consistent evidence that the level of concern is growing.” And the kicker: “One of the most revealing contradictions in the results of this survey is that those who have taken steps to try to avoid observation by others (e.g. tried to avoid hackers or advertisers or people from their past) and those who have taken more general steps to be anonymous (e.g. cleared cookies, used fake names, used encryption or VPNs) are more likely than others to have each of these items of personal information posted online.” Put simply, those who disclose more tend to demand more privacy.
The Pew survey also found that people care about protecting their metadata, even if they don’t care as about it as much as protecting the actual substance of what they’re saying. For example, while 81 percent of respondents indicated that having control over access to the content of emails was “very important” or “somewhat important,” 78 percent said the same thing when it came to the identity of the people with whom they exchanged emails. Judge Leon implicitly understood this, reasoning that the rise of our “cell phone-centric culture” means that “records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic.” And here again, the Obama panel agreed with Judge Leon, pointing out that metadata can reveal calls “to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on.”
The bottom line: The survey data suggests that Judge Leon—and now the Obama panel—have a good grasp of public sentiment about the kind of privacy concerns raised by the NSA’s data mining. Now it’s up to President Obama, and Congress, to catch up.
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