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 Manchu wrote:
Yes it is.

No it isn't. A corporate data policy issue would be "should google sell my search history to advertising companies". The issue here is "should the federal government be allowed to force companies to hand over this data". The reason their data policy ("keep this private") is relevant is that it establishes that the government did in fact force them to hand it over.

What I mean is, it is the policy of the company not to make the data public. That corporate policy is not prima facie evidence of the consumer having a reasonable expectation of privacy as to the information.

 Manchu wrote:
What I mean is, it is the policy of the company not to make the data public. That corporate policy is not prima facie evidence of the consumer having a reasonable expectation of privacy as to the information.

How is it not? If I know that my phone company is not making it public, and no other company in the industry makes their equivalent data public, then why wouldn't I have a reasonable expectation of privacy?

Traditionally, a person does not have an expectation of privacy for purposes of Fourth Amendment protection regarding information they voluntarily disclose to third parties.

 Manchu wrote:
Traditionally, a person does not have an expectation of privacy for purposes of Fourth Amendment protection regarding information they voluntarily disclose to third parties.

Nonsense. If this were true then the government would have the right to listen to the phone conversation itself, not just read the metadata, since by definition there is a third party involved. And a similar argument would apply to virtually everything, and the fourth amendment might as well not exist at all.

It seems you have never heard of the third-party doctrine. And yet even so it exists and is quite well-established in US law.

So far as I know, speaking over the telephone lines has never been construed by a court to be voluntarily disclosing information to the telephone company.

 Manchu wrote:
It seems you have never heard of the third-party doctrine. And yet even so it exists and is quite well-established in US law.

It exists, but it's a bad policy (though a very convenient one if you want to be able to ignore the constitution) in 2015. I'll let someone with a lot more legal knowledge than you handle this one:

"More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

So far as I know, speaking over the telephone lines has never been construed by a court to be voluntarily disclosing information to the telephone company.

But it should be, to be consistent with the idea that metadata is disclosed to a third party. A phone conversation is nothing more than digital data passing through the phone company's computer systems, if the identity of the person you're calling is considered "disclosed" then why should the digital data right next to that piece of information be treated any differently?

(Now, I'm not arguing that phone conversations should be considered disclosed. They shouldn't, and neither should the metadata associated with them.)

Justice Sotomayor's concurrence in Jones is dicta.

The content of a call is no more disclosed to the telephone company than the content of a letter is disclosed to the USPS. The identities of the caller and the person they are trying to call are disclosed to the telephone company, however, just as the address of the sender and intended recipient of a letter are disclosed to the USPS.

 Manchu wrote:
The content of a call is no more disclosed to the telephone company than the content of a letter is disclosed to the USPS.

Only by law, not in functional terms. The contents of a letter are not disclosed because they're in a sealed package and nothing at USPS has access to the contents of the package. The contents of a phone call are "disclosed" to the phone company because they are sent as digital data through the phone company's computer systems. There is no sealed "package" around the data. The only reason why the call data is protected and the metadata isn't is that phone calls and mail are old concepts and have precedents protecting them, while metadata is a new thing invented in the era of "we can do whatever we want as long as we say 'national security' first".

Metadata is not new. Phone numbers, the time calls are placed, etc., have always been metadata in obvious contrast to the content of the call. A consumer must disclose both her telephone number and the number she is dialing to the company in order to make the call. It is not necessary, however, for the telephone company to record the call. Unless the telephone company lets it be known that it records all calls made by its customers, the customers therefore probably have a reasonable expectation of privacy as to the content of the calls they make.

This kind of clarifies that perhaps the issue is that the telephone companies keep metadata records at all. I suppose they might argue such records are necessary to provide service, in terms of analyzing call traffic, etc. I don't know enough about telecommunications to meaningfully speculate.

 Manchu wrote:
It is not necessary, however, for the telephone company to record the call.

So something is only disclosed if it is recorded in a permanent form?

Certainly not.

 Manchu wrote:
Certainly not.

So then what length of storage is required for something to be "disclosed"?

None, it is immaterial.

 Manchu wrote:
None, it is immaterial.

Then the contents of the phone call is "disclosed" along with the metadata.

No, as explained above, the caller voluntarily discloses the metadata to the phone company in order to make the call. But the content of the call itself is not necessary to establish the connection. Therefore, the content of the call is not voluntarily disclosed. Now we might imagine a telephone company that makes using its services contingent upon recording customer calls. Arguably, a customer that places a call with that company has no reasonable expectation of privacy in that call.

 Manchu wrote:
No, as explained above, the caller voluntarily discloses the metadata to the phone company in order to make the call. But the content of the call itself is not necessary to establish the connection.

Of course it's necessary, because a cell phone call is not a direct link between two phones. It is literally impossible to have the call without giving the voice data to the cell phone company. Example:

Right now I decide to call someone. My cell phone sends {block of data} to the nearest tower, where it is processed by the phone company's computer system and appropriate things are done with and in response to it.

A few seconds later the other person has accepted the call, and we start talking. My cell phone sends {block of data} to the nearest tower, where it is processed by the phone company's computer system and appropriate things are done with and in response to it.

Why is one block of data "disclosed", while the other isn't? You already said that there is no minimum storage requirement for it to be considered "disclosed", so why isn't the second block's presence in the memory of the tower's computer considered "disclosure"?

Do you really not understand the difference between having to tell the phone company who you want to call and telling the phone company what you want to say to that person?

 Manchu wrote:
Do you really not understand the difference between having to tell the phone company who you want to call and telling the phone company what you want to say to that person?

There is no difference. They're both just blocks of data transmitted to a computer system and processed automatically. It isn't 1900 anymore, you don't call the phone company and ask a person to connect you to whoever you want to talk to.

 Manchu wrote:
Do you really not understand the difference between having to tell the phone company who you want to call and telling the phone company what you want to say to that person?

The problem is though, with that first bit of information, it is all to easy, with the right "stuff" to gain access to the second bit of information.


If you send a letter via snail mail, yes you are disclosing the to and from, but no one has the ability to know exactly what is inside, based solely on the markings of the outside. This is not true with a phone call sent via cell phone. If you have either the "To: or the "From:" information, there's a whole lot you can do with it

The difference is obvious. When you dial a number, you are requesting that the phone company connect your number with another number. In order to make this request of the phone company, you must disclose the numbers in question to the phone company. What you say to the party or parties to whom the telephone company connects you is not said to the telephone company.

It is the difference between speaking to the phone company and speaking to the person you are trying to call.


Automatically Appended Next Post:

 Ensis Ferrae wrote:
it is all to easy, with the right "stuff" to gain access to the second bit of information

Sure but that is irrelevant. The police obviously have the technology to listen in on calls but cannot constitutionally do so absent a warrant based on probable cause.

Just to be clear, what is at issue in this case is not the content of calls.

 Manchu wrote:
In order to make this request of the phone company, you must disclose the numbers in question to the phone company.

And to talk to someone through a cell phone you have to disclose the voice data you wish to be transmitted.

What you say to the party or parties to whom the telephone company connects you is not said to the telephone company.

Yes it is. Cell phones are not a direct person to person connection, to use them you have to each send your respective voice data to the phone company. It is literally impossible to use a cell phone to talk to someone without doing so.

Again, the analogy of mail is apt: The addresses on the envelope are written by the sender to be read by the USPS. It is not merely a question of the USPS being capable, if they are so willing, to read the addresses. The sender explicitly intends to convey that information to the USPS. That is a voluntary disclosure; in other words, information directed by the sender to the USPS. The contents of the letter, by contrast, are directed to the recipient and NOT the USPS. The same is true of a telephone call. The information necessary to place the call is directed to the phone company. The content of the ensuing conversation is NOT, even though it is conveyed by and through infrastructure owned by the company.

 Manchu wrote:
Again, the analogy of mail is apt:

No it isn't, because the physical function of the two systems is completely different. When you send a letter by USPS the envelope is never opened. When you send voice data through a cell phone system the "envelope" is opened, its contents are read and processed by the computer, and then the data is sent to another computer where it is packaged up again and then broadcast to the person you're talking to.

The only reason the analogy is "apt" is that it provides a convenient excuse for warantless searches. The voice data is off-limits because of precedent, but if you can reclassify some data associated with it and create an analogy with some other stuff that can be obtained without probable cause you can ignore those pesky constitutional restrictions that might get in the way of stopping "terrorists".

The information necessary to place the call is directed to the phone company.

Only to the same degree that the voice data itself is. In normal operation the "destination" metadata is processed exactly the same way as the voice data is, without ever involving a human. So if sending a destination phone number to a computer is "disclosing" the information then so is sending voice data to the same computer.

The distinction between a communication to the phone company and to the recipient survives the technological contrivances. The request to connect is made to the company, not to the recipient of the call. Likewise: whether the ensuing conversation upon a successful connection is transmitted via wires or otherwise, that content is still directed to the parties to the call, of which the telephone company is not one. Now, if phone companies start advertising that their services are conditional upon your consent that they listen in, that is of course another matter.

 Manchu wrote:
The distinction between a communication to the phone company and to the recipient survives the technological contrivances.

Only because it's useful if your goal is to remove fourth amendment protections from the data you want to read.

Likewise: whether the ensuing conversation upon a successful connection is transmitted via wires or otherwise, that content is still directed to the parties to the call, of which the telephone company is not one.

Who cares about the primary audience for a particular piece of data? If I tell you a message and say "could you pass this on to that guy over there" then I've still disclosed the contents of the message to you, even though you aren't the person I'm direct the message to.

Again, the analogy of mail is instructive. Literal letters are sent in envelopes. Cell phone calls can be said to have figurative envelopes. For the purposes of this discussion, an envelope is nothing more than a line between information one expects to be public and information one expects to be private. The line of the figurative envelope is demarcated by the caller's intention. The caller intends to communicate some information to the telephone company in order to place the call. The caller intends to communicate other information to the recipient of the call and not the phone company, no matter how the company has decided to make that possible in terms of business and technology. The line between the former and the latter is the figurative envelope. The caller is not trying to tell the telephone company to tell his mother he said happy mother's day. But he does intend to tell the telephone company what his mother's telephone number is so that it can connect him to her, or given the exigencies of technology send these figurative envelopes of data back and forth between them.

 Manchu wrote:
Again, the analogy of mail is instructive.

Except it isn't, because they're fundamentally different systems.

When I mail a letter I place the private contents within a sealed envelope, and I write the address on the outside of the envelope. I expect that the address information will be read by humans, because that's how mail is delivered. I have clearly disclosed the address on the letter, and can't reasonably claim that I didn't expect humans to read it.

When I make a phone call I have no such expectation with any part of the data. I expect that the voice data will be processed by an automated computer system and sent to the other person, and I expect that the phone number data (the address equivalent) will be processed and used by an automated computer system without ever involving a human. I do not expect humans to read any part of this data in normal operation of the system.

The ONLY reason the phone number data is treated like a human-read address instead of machine-processed voice data is that certain government organizations want the ability to read phone number data without first establishing probable cause.

Don't confuse literal and figurative envelopes. The USPS cannot (generally speaking) see the contents of a literal letter without physically opening the envelope. Neither can the phone company hear your call without listening in. It is irrelevant that the voice data and the metadata are transmitted via the same infrastructure; there is a line between on the one hand the data the phone company customarily must access (that particular data necessary to route the call), just like the information written on the outside of an envelope, and on the other hand the data that makes up the call itself, which is analogous to the letter inside of the physical envelope.

 Manchu wrote:
Neither can the phone company hear your call without listening in.

Nor can they "hear" the "address" data without listening in. At no point in the normal operation of the system does a human see the phone number you're calling.

there is a line between on the one hand the data the phone company customarily must access (that particular data necessary to route the call), just like the information written on the outside of an envelope, and on the other hand the data that makes up the call itself.

And, as I keep telling you, there isn't from a functional perspective. Both sets of data are processed by automated computer systems without any human involvement. If the automated system processing the phone number data counts as "disclosing" then the same processing on the voice data should count as "disclosing". The only reason to treat them differently is if you've conceded that there's no way you can get warrantless searches of the voice data, but you think you might be able to get warrantless searches of the phone number data if you can confuse the court enough with bad analogies.