A Stitch in Haste

Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
--Smith v. Maryland (Stewart, J., dissenting)

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes.
--Smith v. Maryland (Marshall, J., dissenting)

The Wall Street Journal has a feature story today on the federal government's increasing use of data mining (i.e., gathering random information about vast numbers of citizens, without any individualized suspicion of wrongdoing) in the War or Terror:

According to current and former intelligence officials, the [NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.
...
A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

The article mentions a famous — and atrocious — Supreme Court case from 1979, Smith v. Maryland*. The key holding in that case was that, since a person must "tell the phone company what number she is dialing," she cannot have any reasonable expectation of privacy in that phone number, and that the government can therefore demand that phone number from the phone company without a warrant based upon probable cause.

Stated differently, the Court held, preposterously, that there is no difference between AT&T knowing whom you're calling and the government knowing it.

(This idea that "your utility bills belong to the utility and not to you" is, incidentally, also the basis for "heat lamp warrants": the use by drug warriors of unusually high electricity bills — records obtained without a warrant, of course — as evidence to bring to a judge to obtain a search warrant for the premises.)

Beyond the facial (i.e., telephonic) absurdity of Smith v. Maryland at the time, are the ominous new implications it has for modern electronic communications. To posit that the government can obtain your phone logs is bad enough, but that still does not mean that the government can listen in on your phone calls without a warrant (ignoring for the moment unconstitutional violations of FISA).

But the information contained in, e.g., an email header often contains information that a phone number does not: the name (not just the email address) of the recipient, the subject matter, whether it is a reply or forwarded email, the size and file names of attachments, etc. For the government to simply declare, "We can access that header without a warrant — see Smith v. Maryland," is insolent obliviousness.

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Equally insolent is the notion that "driftnet" surveillance — "get everyone's data and let the computers sort it out" — is somehow not problematic. This is the asinine proposition of, among others, Richard Posner: that "a computer can't violate your rights."

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More thoughts from Threat Level, Deep Links, Concurring Opinions.

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*Smith v. Maryland, 442 U.S. 735 (1979)