Appeals Court rules NSA bulk collection of domestic data is illegal

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**Peregrine**

Manchu wrote:
The caller is only voluntarily disclosing to the telephone company the data necessary to place the call.

You keep saying this over and over again, but that doesn't make it true. However you define "disclosed"* either the metadata and voice data are both disclosed, or they are both not disclosed.

*Unless of course you define "disclosed" as "giving the phone number data but not the voice data", as you seem to be doing.

**Manchu**

Again, the legal concept of "voluntary disclosure" is not the same thing as the mechanical act of transmitting data. Therefore, it is immaterial that the metadata and voice data are mechanically transmitted in the same way. The key legal distinction is who is talking to whom. Part of a call involves the caller talking to the phone company, making a request to place a call to a certain number at a certain time, etc. The rest of the call is the content, which is the caller talking to the party or parties on the receiving end of the call.

**Peregrine**

Manchu wrote:
The key legal distinction is who is talking to whom.

And in both cases you're talking to an automated machine in the cell phone tower.

Part of a call involves the caller talking to the phone company, making a request to place a call to a certain number at a certain time, etc. The rest of the call is the content, which is the caller talking to the party or parties on the receiving end of the call.

Which is based on a "post office" metaphor that has nothing to do with how cell phones actually work. The only reason to apply the metaphor is if your goal is to "prove" that the metadata should be available without probable cause. If your goal is to accurately apply the protections of the fourth amendment then you don't get the metadata.

**Manchu**

I mentioned this to Hordini and maybe you missed it. A puts a note under B's door. A has voluntarily disclosed the information contained in the note to B whether or not B ever reads that information. Similarly, it does not matter that a computer (figuratively) "reads" the phone number the caller dials. By dialing the number, the caller has voluntarily disclosed it to the telephone company because the company needs that information to place the call -- whether or not any human employee of the company ever (literally) reads the number.

The infrastructure is just a box into which and out of data travels. Some of the data that goes into that box is meant for the company that owns the box; some of it is not.

**Peregrine**

Manchu wrote:
I mentioned this to Hordini and maybe you missed it. A leaves a note on B's door. A has voluntarily disclosed the information contained in the note to B whether or not B ever reads that information.

And that is why the voice data is disclosed, under that standard of "disclosed".

**Manchu**

No, because that is not what is going on when one places a call.

**Peregrine**

Manchu wrote:
No, because that is not what is going on when one places a call.

Except it is. You're leaving a note on the phone company's door and asking them to forward it to someone.

**Manchu**

No, when you place a call you are asking a company to transmit voice data back and forth over its infrastructure.

**Peregrine**

Manchu wrote:
No, when you place a call you are asking a company to transmit voice data back and forth over its infrastructure.

And, as with the note on the door, the process of transmission requires handing the "note" to them. This is not a sealed envelope like the letter at the post office.

**Manchu**

It is very much like a sealed envelope. All the data goes into a box. The box can distinguish one type of data from another, including which type of data the caller directs to the telephone company in order to place the call and which data is not directed at the telephone company, like the voice data (i.e., what is "inside" and "outside" of the "envelope"). The figurative "envelope" in this case is simply the line between what one is telling the company on the one hand and the content of the call on the other.

**Peregrine**

Manchu wrote:
It is very much like a sealed envelope.

No it isn't, because it's missing an essential element: the seal.

The box can distinguish one type of data from another, including which type of data the caller directs to the telephone company in order to place the call and which data is not directed at the telephone company, like the voice data (i.e., what is "inside" and "outside" of the "envelope").

Except you already said that corporate data policies are irrelevant, much like the fact that whether or not the person reads the note on their door. The box currently does different things with different types of data, but that's no different than the recipient of the door note deciding it's spam and throwing it away without reading it. You still gave the phone company the voice data, they just voluntarily decided not to read it.

The figurative "envelope" in this case is simply the line between what one is telling the company on the one hand and the content of the call on the other.

And, as I keep telling you, there is no difference between the two. You're telling both pieces of information to the company, they're just taking different actions with the difference pieces of what you tell them.

**Manchu**

I don't think the seal is very important to our metaphor. in terms of literal envelopes, the seal is important primarily to make sure the contents are not misplaced. If the seal happens to come undone while a letter is in transit, that is not a voluntary disclosure of the contents to the USPS or anyone else. Furthermore, telephone lines have never been "sealed." The practice of wire tapping demonstrates this. The ability of some third party to "get into" the figurative "envelope" is not the measure of one's reasonable expectation of privacy. The key factor, in terms of the third-party doctrine, is the voluntary disclosure. The carriers, as their designation implies, carry data across their infrastructure. Just because the carrier has potential access to that data doesn't mean anyone has voluntarily disclosed it to them. By contrast, the information necessary to place the call is voluntarily disclosed to them -- it must be, in order to make the call.

**Ghazkuul**

out of curiosity, has anyone who thinks the NSA is spying on them ever bothered to read the FISA Act or EO 12333? furthermore, do you realize that this "Bulk" collection isn't your conversations but is instead "meta" data? this is basically phone numbers, cell tower information and that nonsense (which your phone company is already recording anyway). Also, your location isn't located like you think it is. Every spy movie where your phone is tracked to the extent that the bad/good guys can locate you to within a foot or two is wrong. If you don't believe me go take a few classes on cell towers and the usage of CDMA and other styles of cell phone data use.

**Ensis Ferrae**

Ghazkuul wrote:
snip

Have you read any of the 6 pages of discussion?

As to your points; 1. NSA has proven time and again that it doesn't particularly care for anything that limits or prohibits their ability to spy on US citizens. They are afterall, the "National Security" Agency, and they've shown a knack for hand waving away violations.

2. Yeah, it's bulk data. The problem is what a person can do with metadata, as has already been discussed at some length.

You are correct in that you can't really get to within a foot or two, but you can most definitely get within a couple meters. One of the many jobs I had in the army during my time in Iraq was operating some of the systems previously mentioned in this thread.

**Ghazkuul**

Ensis Ferrae wrote:
Ghazkuul wrote:
snip

Have you read any of the 6 pages of discussion?

As to your points; 1. NSA has proven time and again that it doesn't particularly care for anything that limits or prohibits their ability to spy on US citizens. They are afterall, the "National Security" Agency, and they've shown a knack for hand waving away violations.

2. Yeah, it's bulk data. The problem is what a person can do with metadata, as has already been discussed at some length.

You are correct in that you can't really get to within a foot or two, but you can most definitely get within a couple meters. One of the many jobs I had in the army during my time in Iraq was operating some of the systems previously mentioned in this thread.

Well sir, not trying to call you out but you are in fact a liar. I did similar work for the USMC and the closest you can get with CDMA or GSM is about 1-2 city blocks. And that is only in densely populated areas where cell phone towers are everywhere.

And what exactly are you afraid of with Bulk meta data? are you really worried that the government is monitoring your time lag between when a call is made and when it is answered?

**Manchu**

In her Jones concurrence, Justice Sotomayor expressed some concerns about GPS tracking that overlap to some extent with the issue of cell phone metadata:

In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such recordsand efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society.

Citations omitted.

**Peregrine**

Ghazkuul wrote:
And what exactly are you afraid of with Bulk meta data? are you really worried that the government is monitoring your time lag between when a call is made and when it is answered?

You do realize that metadata can be used as evidence in criminal cases, right?

**daedalus**

Peregrine wrote:
Ghazkuul wrote:
And what exactly are you afraid of with Bulk meta data? are you really worried that the government is monitoring your time lag between when a call is made and when it is answered?

You do realize that metadata can be used as evidence in criminal cases, right?

Not to mention that it's also more telling and dangerous than actual content in a lot of ways.

**Ghazkuul**

Simple solution manchu ready....dont turn on your phones GPS! or god forbid if you really worried that the US government is tracking your movements through petsmart you can always just turn it off when your not using it to find your buddies home because you can't remember directions to save your life :-p

**Manchu**

Peregrine wrote:
You do realize that metadata can be used as evidence in criminal cases, right?

Including as of now, at least arguably, metadata collected without any warrant.

**Ghazkuul**

Peregrine wrote:
Ghazkuul wrote:
And what exactly are you afraid of with Bulk meta data? are you really worried that the government is monitoring your time lag between when a call is made and when it is answered?

You do realize that metadata can be used as evidence in criminal cases, right?

And you do realize that in all matters relating to criminal cases in which meta data would be used the police can just get a warrant to pull your phones records from your phone company or from your actual phone itself......so doesn't matter slightly.

**Manchu**

Ghazkuul wrote:
Simple solution manchu ready....dont turn on your phones GPS!

I would prefer the admittedly more complicated solution of Congress enacting legislation to establish that such information can only be obtained by the government pursuant to a valid warrant.

**Ghazkuul**

Manchu wrote:
Peregrine wrote:
You do realize that metadata can be used as evidence in criminal cases, right?
Including as of now, at least arguably, metadata collected without any warrant.

To use any meta data in a court case the lawyers would have to reveal their sources for the information, if said information was not gained by the lawful use of a Warrant the data is inadmissible in the court case.

**daedalus**

GPS is especially outrageous because it requires active transmission of otherwise locally collected data back to some third party. You could create a GPS client that is just as functional with respect to maps and have absolutely zero communication to any remote entity. It's a one-way system at it's core.

**Jihadin**

My Google Fu is off. Anyone heard of any terrorist getting nailed from metadata collection? As in being caught before the crime the NSA can be directly connected to

Automatically Appended Next Post:

daedalus wrote:
GPS is especially outrageous because it requires active transmission of otherwise locally collected data back to some third party. You could create a GPS client that is just as functional with respect to maps and have absolutely zero communication to any remote entity. It's a one-way system at it's core.

Ground Positioning Device?

Edit

I might have over read this topic Dae.....gist of it?

**Manchu**

Ghazkuul wrote:
the police can just get a warrant to pull your phones records from your phone company or from your actual phone itself......so doesn't matter slightly

The police must convince a judge they have probable cause to obtain specific information in order to get that warrant. A warrant is a constitutionally-established protection. The difference between the police having to obtain a warrant to search one suspect's phone metadata on the one hand and not needing a warrant to access everyone's phone data on the other hand is impossible to overestimate.

**Ghazkuul**

Manchu wrote:
Ghazkuul wrote:
Simple solution manchu ready....dont turn on your phones GPS!
I would prefer the admittedly more complicated solution of Congress enacting legislation to establish that such information can only be obtained by the government pursuant to a valid warrant.

To use any of the information that is stored the analyst working on your information would have to seek a Warrant. Otherwise the data is literally just stored and forgotten about.

Automatically Appended Next Post:

Manchu wrote:
Ghazkuul wrote:
the police can just get a warrant to pull your phones records from your phone company or from your actual phone itself......so doesn't matter slightly
The police must convince a judge they have probable cause to obtain specific information in order to get that warrant. A warrant is a constitutionally-established protection. The difference between the police having to obtain a warrant to search one suspect's phone metadata on the one hand and not needing a warrant to access everyone's phone data on the other hand is impossible to overestimate.

If you tried to view a US persons meta data without a Warrant you would lose your security clearance and face an internal review. Trust me, their aren't enough analysts in the world to monitor even 1/100th of a city, nobody is actively searching your information for S&G

**Manchu**

Jihadin wrote:
Anyone heard of any terrorist getting nailed from metadata collection?

The NSA originally claimed that 54 terrorists attacks had been stopped because they collect cell phone metadata. That number has shrunk over time and now stands at basically zero.

**Ghazkuul**

I can't get into specifics beyond saying that META data is useless except when used with secondary intelligence. Such as HUMINT or SIGINT working a specific mission.

**Jihadin**

Manchu wrote:
Jihadin wrote:
Anyone heard of any terrorist getting nailed from metadata collection?
The NSA originally claimed that 54 terrorists attacks had been stopped because they collect cell phone metadata. That number has shrunk over time and now stands at basically zero.

Figure as much. I wasn't all that impress by them when I got nailed to do 45 days there (NSA) while I was sitting on my butt waiting treatments at Ft. Meade when I was there recovering.
Nope I do not know Snowden and no I do not know Manning.

Edit

Was detailed out to them. They're not all that damn bright