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It is not a matter of the telephone company being allowed to listen in on the address data. They are not listening in at all; the caller is explicitly and intentionally communicating that information to the company. This is a clear voluntary disclosure: A knowingly says X to B. Now the content of the call is completely different: A is no longer talking to B but rather to C. And what A is saying to C is not the same kind of information as X, i.e., the kind of information B needs to connect A and C. A is certainly not telling B to tell C anything, either. Now, perhaps B has the means to listen in on what A and C are talking about but B customarily is not allowed to do so, therefore A has a reasonable expectation of privacy in the call, at least as to what the government could demand B to provide.

To clarify, X was never protected by the Fourth Amendment because it is a voluntary disclosure to a third party. That was not made up by government lawyers to mystify judges into allowing the NSA to conduct unconstitutional searches/seizures.

 Manchu wrote:
It is not a matter of the telephone company being allowed to listen in on the address data. They are not listening in at all; the caller is explicitly and intentionally communicating that information to the company.

They're also communicating the voice data. Both are sent to and processed by the same computer system.

Now the content of the call is completely different: A is no longer talking to B but rather to C.

No you aren't. You're talking to B and asking them to pass the message on to C. Cell phones are not a direct link between two people.

It really does not matter if the data all goes to the same place. Only some of that data is being voluntarily disclosed to the telephone company: it is the data the caller intends to give the company in order to place the call. It does not matter that the voice data is passed through the infrastructure owned by the company; as I explained, the callers does not say to Verizon, please tell my mother I wish her a happy mother's day. When he says happy mother's day to his mom on his cell phone, that data goes somewhere before coming out of his mom's phone. But he is not talking to Verizon. For Verizon to hear what he was saying, it would have to listen in, which is customarily impermissible. This is in contrast to the other data being received and transmitted as part of the call, which is explicitly directed to Verizon (not mom) and therefore constitutes a voluntary disclosure to Verizon.

It seems like your confusion stems from conflating the telephone company with the communications infrastructure it owns.

 Manchu wrote:
Only some of that data is being voluntarily disclosed to the telephone company:

Only because your definition of "disclosed" has nothing to do with the physical reality of the situation.

It does not matter that the voice data is passed through the infrastructure owned by the company; as I explained, the callers does not say to Verizon, please tell my mother I wish her a happy mother's day.

Nor do you say to Verizon "please connect me to my mother". So if the computer system's processing of the voice data does not count as "disclosing" the information to Verizon then neither does the computer system's processing of the phone number data.

For Verizon to hear what he was saying, it would have to listen in

Same thing for the phone number data. For Verizon (where "Verizon" is defined as "the human employees of Verizon", not "a computer owned by Verizon") to hear the phone number data they have to listen in. In normal operation of the system this does not happen.

It seems like your confusion stems from conflating the telephone company with the communications infrastructure it owns.

No, I know perfectly well that there is a difference. The point you keep missing is that you're only disclosing the phone number data to the infrastructure, not to any human employee of the company. So if giving one piece of data to the infrastructure counts as "disclosing" it then the same should apply to giving another piece of data to the infrastructure.

The infrastructure is just the medium. It is not an actor to whom information can be disclosed. When you make a call you voluntarily disclose the phone number of the person you are trying to reach to your carrier whether or not eyes of flesh ever read that number. The company may "read" or not read or do whatever else it likes with that information (including recording it) within the bounds of its contractual obligations and the law. Customarily, it may not "read" or listen in on information not disclosed to it (i.e., the content of calls) without regard to the fact that such information is received and transmitted via infrastructure it owns.

 Manchu wrote:
The infrastructure is just the medium. It is not an actor to whom information can be disclosed.

Then the phone number data is not disclosed, and should not be available without probable cause.

Customarily, it may not "read" or listen in on information not disclosed to it (i.e., the content of calls) without regard to the fact that such information is received and transmitted via infrastructure it owns.

Except you've already said that corporate data policies are not proof that something can be assumed to be private. If a corporate data policy that phone number data sent to its infrastructure will not be read by humans is not enough then why should a corporate data policy that voice data sent to its infrastructure will not be read by humans any different?

The phone number is disclosed because dialing it is a request to the company to place the call.

It is not the company's policy or agreement with its customers that it will not listen in on their calls that concerns the law, at least not in the first place. Rather, it is the fact that the customers have not voluntarily disclosed the content of their calls to the carrier.

 Manchu wrote:
The phone number is disclosed because dialing it is a request to the company to place the call.

Only if you define an automated computer system in the cell phone infrastructure as "the company". If you instead define it as a human employee of the company then no such disclosure is required.

Again, this is the key difference between cell phones and mail. When you mail a letter you have two separate pieces of information: private information in a sealed envelope that is never seen by a human, and address/postage/etc information on the outside of the envelope that is read by humans as a necessary part of mailing the letter. When you make a cell phone call there is no human/no-human difference in how the information in the call is used. The voice data is handled exactly the same way as the metadata, and none of it requires a human to ever "read" it. When you mail a letter you can not reasonably claim that you did not expect a human to read the address information. When you make a cell phone call you can reasonably make that assumption.

Rather, it is the fact that the customers have not voluntarily disclosed the content of their calls to the carrier.

You have voluntarily disclosed them, if sending a block of data to the infrastructure counts as "disclosing" it.

Sending data through telecommunications infrastructure is not the same thing as voluntarily disclosing that data to the company that owns the infrastructure. The only part of that data you are voluntarily disclosing to the company is the portion the company needs to in order to transmit the other portion, the content.

 Peregrine wrote:
You have voluntarily disclosed them, if sending a block of data to the infrastructure counts as "disclosing" it.

What if the voice data is encrypted? You could theoretically encrypt the voice data, while leaving the metadata unencrypted.

Encryption is irrelevant. The voice data is inside of the figurative envelope for the purposes of the Fourth Amendment (as to government demands on the carrier); the portion of the data merely transmitted via the infrastructure owned by the company which is not disclosed to the company.

 Manchu wrote:
Sending data through telecommunications infrastructure is not the same thing as voluntarily disclosing that data to the company that owns the infrastructure.

Then neither is sending address data to the infrastructure. If a computer processing one piece of data does not count as "disclosure" then neither should that same computer processing a different piece of data.

And I notice that you just ignored the point I made about humans reading a piece of data (the address on an envelope) and an automated machine processing a piece of data without ever involving a human (the phone number). But I guess you'd rather talk about metaphorical "envelopes" and bad analogies that conveniently happen to provide a way to get around the fourth amendment.

As I already explained, it does not matter whether a human employee of the company ever reads the data voluntarily disclosed to the company by its customers. The information was still disclosed to the company. That has no bearing on the legal fact that the customer may transmit information via the company's infrastructure without disclosing it to the company.

 Manchu wrote:
Encryption is irrelevant. The voice data is inside of the figurative envelope for the purposes of the Fourth Amendment; the portion of the data merely transmitted via the infrastructure owned by the company which is not disclosed to the company.

Well, I think Peregrine's point was that by sending the information via an open channel through the cell phone infrastructure, it's the same as disclosing it as you would the metadata that the cell phone company needs to complete the call. A good analogy might be writing a letter, putting an address and stamp directly on the letter (no envelope), and mailing it. It should still get to the recipient but you probably can't reasonably expect that it won't be read in some form or fashion, even if it's just to find the recipient's address.

If you encrypt the voice data, it's similar to putting a letter in an envelope before mailing it.

Peregrine's point is legally incorrect: transmitting data is not the same thing as disclosing it. This is why it is unconstitutional for the police to use wire taps without warrants.

 Manchu wrote:
Peregrine's point is legally incorrect: transmitting data is not the same thing as disclosing it.

Which is fine. The point I'm making is that if transmitting data is not disclosing it then cell phone metadata is not disclosed. And if the law says otherwise it's only because the government has been doing their absolute best to undermine any pesky fourth amendment protections that might get in the way of "stopping terrorism".


Automatically Appended Next Post:

 Manchu wrote:
As I already explained, it does not matter whether a human employee of the company ever reads the data voluntarily disclosed to the company by its customers.

Why not? The fact that a human is expected to read the address information on an envelope is the reason why that information is considered to be disclosed and not protected by the fourth amendment.

The information was still disclosed to the company.

Only in the exact same way that the voice data was disclosed. Both are transmitted by radio to the same cell phone tower and processed (IOW "read") by the same computer. And you've already said that the company's data privacy policies ("we aren't going to read this part of the data you send us") are not relevant.

 Manchu wrote:
Peregrine's point is legally incorrect: transmitting data is not the same thing as disclosing it. This is why it is unconstitutional for the police to use wire taps without warrants.

Yes, I understand that. I was curious as to what he would say about encryption, though.

It's also possible to transmit voice data through media (such as cell towers) without them being able to actually listen to the voice data being transmitted. It can be done with other kinds of data as well. They would still need the metadata to be able to complete the call though. So I think you (Manchu) are probably right.


Automatically Appended Next Post:

 Peregrine wrote:
Only in the exact same way that the voice data was disclosed. Both are transmitted by radio to the same cell phone tower and processed (IOW "read") by the same computer. And you've already said that the company's data privacy policies ("we aren't going to read this part of the data you send us") are not relevant.

The voice data doesn't necessarily have to be read in order to be transmitted. The metadata does.

 Hordini wrote:
The voice data doesn't necessarily have to be read in order to be transmitted.

Yes it does, if you're defining "read" to include "a computer moved it from one memory location to another, performed operations on it, and used the results to execute instructions in its program".

(If you aren't defining "read" that way then the metadata isn't read either.)

 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.

But giving that information to the government IS prima facae evidence of a search. Such search is illegal without a warrant.

https://firstlook.org/theintercept/2015/05/08/u-s-government-designated-prominent-al-jazeera-journalist-al-qaeda-member-put-watch-list/

note ..

The document cites Zaidan as an example to demonstrate the powers of SKYNET, a program that analyzes location and communication data (or “metadata”) from bulk call records in order to detect suspicious patterns.

The document cites Zaidan as an example to demonstrate the powers of SKYNET, a program that analyzes location and communication data (or “metadata”) from bulk call records in order to detect suspicious patterns.

In the Terminator movies, SKYNET is a self-aware military computer system that launches a nuclear war to exterminate the human race, and then systematically kills the survivors.

According to the presentation, the NSA uses its version of SKYNET to identify people that it believes move like couriers used by Al Qaeda’s senior leadership. The program assessed Zaidan as a likely match, which raises troubling questions about the U.S. government’s method of identifying terrorist targets based on metadata.

It appears, however, that Zaidan had already been identified as an Al Qaeda member before he showed up on SKYNET’s radar. That he was already assigned a watch list number would seem to indicate that the government had a prior intelligence file on him. The Terrorist Identities Datamart Environment, or TIDE, is a U.S. government database of over one million names suspected of a connection to terrorism, which is shared across the U.S. intelligence community.

The presentation contains no evidence to explain the designation.

Skynet.

.. really ?!

 Peregrine wrote:
The point I'm making is that if transmitting data is not disclosing it then cell phone metadata is not disclosed.

That is still incorrect. Simply transmitting data over some infrastructure is not necessarily a voluntary disclosure of that information to the owner of the infrastructure, the telephone company. The portion of that transmitted data that the caller intends to communicate to the telephone company, that is the information that the telephone company requires in order to place the call, is voluntarily disclosed to the company by the caller. (Nor is it necessary that some employee of the company ever actually read that data.) Even if the content of the call is transmitted by the same infrastructure, the content is not directed to the company. This information is therefore not voluntarily disclosed to the company by the caller.

 Hordini wrote:
The voice data doesn't necessarily have to be read in order to be transmitted. The metadata does.

Whether the information is "read" (either in the literal sense by an employee of the telephone company or in the figurative sense by some component of its telecommunications infrastructure) is immaterial. The key factor here in determining to whom the caller makes a voluntary disclosure is determining to whom the information is directed. It could not be simpler: the question is, who tells who what? In order to make a call, the caller must direct some information (such as the telephone number of the intended recipient) to the telephone company. The caller does this knowingly, intentionally, and freely. This is a voluntary disclosure. Whether anyone at the company ever reads that data does not matter. Think of it this way: you voluntarily disclose to me any information in a letter you send to me, whether or not I ever actually read the letter.

 Frazzled wrote:
But giving that information to the government IS prima facae evidence of a search. Such search is illegal without a warrant.

Incorrect -- you are skipping the crucial element of a reasonable expectation of privacy. If a person has no reasonable expectation of privacy in the information searched, then the police do not require a warrant to search it (because it is not a search for Fourth Amendment purposes).

If thats incorrect, then why does the FBI have to have a warrant to get the same information from the same companies?

 Hordini wrote:

What if the voice data is encrypted? You could theoretically encrypt the voice data, while leaving the metadata unencrypted.

In a way it is. If you look at the various infrastructure systems, every phone number has an IMEI number or some other "fingerprinting" identifier attached to it. This is how phones connect and communicate even across networks. This is why someone like the Government having a list with your phone's fingerprinting data is so potentially dangerous.

 Frazzled wrote:
If thats incorrect, then why does the FBI have to have a warrant to get the same information from the same companies?

To what case law are you referring?

Please provide case law on your part that the FBI may pull phone records without a warrant.

You made the claim that the FBI needs a warrant to collect cell phone metadata therefore you bear the burden of supporting that claim with case law.

 Manchu wrote:
You made the claim that the FBI needs a warrant to collect cell phone metadata therefore you bear the burden of supporting that claim with case law.

Incorrect. I just need to point to the 4th Amendment. Back to you counselor.


If I'm wrong I'll admit I'm wrong and weep a little more about the loss of our freedom.

No, simply pointing to the Fourth Amendment does not back up your claim that the FBI needs a warrant to look at cell metadata. If no search has occurred, then Fourth Amendment protections cannot apply. A search occurs when the government accesses information in which you have a reasonable expectation of privacy. If you don't have that expectation, there is no search and no need for a warrant.

So, again, on what legal basis did you make that quite specific claim that the FBI needs a warrant to access cell metadata? Are you just making up stuff to provoke a response?

C'mon guys.

http://www.grassley.senate.gov/news/news-releases/leahy-grassley-press-administration-use-cell-phone-tracking-program

According to this letter sent to Holder about the Stingray program, it appears that the FBI's policy is to get a warrant before deploying. At least, at this time, in those cases.

(I'm not even going to get into all those other sticky issues about Stingray, but there's that at least)

 Manchu wrote:
No, simply pointing to the Fourth Amendment does not back up your claim that the FBI needs a warrant to look at cell metadata. If no search has occurred, then Fourth Amendment protections cannot apply. A search occurs when the government accesses information in which you have a reasonable expectation of privacy. If you don't have that expectation, there is no search and no need for a warrant.

So, again, on what legal basis did you make that quite specific claim that the FBI needs a warrant to access cell metadata? Are you just making up stuff to provoke a response?

Federal Criminal Procedure discussions. Admitted that seems like centuries ago. After all there were only 27 stars on the flag then.

EDIT: Evidently the issue is contentious and in the courts currently:
"What About the Constitution?

The court held that it did not need to reach the ACLU’s constitutional claims because of its statutory holding. Nevertheless, it noted that the ACLU’s Fourth Amendment claim presented "vexing issues" and that the "seriousness of the constitutional concerns" informed its statutory analysis.

Chief among these vexing issues is the so-called third-party doctrine. Just this week, the Eleventh Circuit issued a disappointing decision holding that the third-party doctrine eliminates cell phone users’ Fourth Amendment rights in historical cell phone location information. The doctrine is before the courts in Smith v. Obama, the Fourth Amendment challenge currently before the Ninth Circuit in which EFF and the ACLU are co-counsel, and Klayman v. Obama, currently under submission in the D.C. Circuit, in which EFF argued as amicus. Hopefully those courts will pick up on the Second Circuit’s "constitutional concerns" and hold that the third-party doctrine does not shield the phone records dragnet. We’d like to see similar rulings in our other cases that involve phone records collection, including Jewel, First Unitarian, and Human Rights Watch v. DEA."
https://www.eff.org/deeplinks/2015/05/eff-case-analysis-appeals-court-rules-nsa-phone-records-dragnet-illegal