So yes it’s good to have an open discussion of just how much stuff the government (and private parties) should be able to know and remember about us, and if as Edward Snowden claims the NSA has been lying to Congress about stuff that would be bad and it should stop.
But can we not (and I’m talking to you, U.S. Congress) pretend that we had no idea that this was all going on at all, or that it’s something that the current administration invented?
Congress created and authorized the FISA court in 1978, and gave it extra additional power in 2008; the Supreme Court found in 1979 (Smith v. Maryland) that we have no expectation of privacy in, and so no warrant is even necessary to record, phone numbers that people dial, and by extension other “envelope” and “metadata” information about communications (i.e. everything but the content itself).
(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a “legitimate expectation of privacy” that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as “reasonable.” Katz v. United States, 389 U.S. 347 . Pp. 739-741.
(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not “legitimate.” First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as “reasonable.” When petitioner voluntarily conveyed numerical information to the phone company and “exposed” that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746.
A few people in Congress and the wider political arena have been worrying about this for some time, and to them I gladly grant the chance to say “I told you so”. But for the rest, who are suddenly grabbing the limelight by pretending this is a Brand New Bad Thing that has just happened and they are decrying, I cry foul. You knew about this, you did nothing about this, in many cases you made this possible and encouraged it. So don’t pretend now that you are a brave opponent…