Sunday, November 22, 2015

228.2 - Good News: Court says feds collecting URLs as metadata may be violating federal law

Good News: Court says feds collecting URLs as metadata may be violating federal law

So that's the Not Good News, what's the Good News?

The Good News is that in the same decision that let Google off the hook, the Court was careful to make another point: Courts have pretty consistently ruled that the government does not need a warrant to spy on and collect so-called "non-content" data, or the metadata, of our communications - they can record, for example, who made a phone call, who got a phone call, who sent an email, who got an email; but not the content of what was said or written.

But in its decision, the Third Circuit said that merely tracking the URLs someone visits can constitute collecting the contents of their communications, and that doing so without a warrant can violate the Wiretap Act.

As an example of how the would happen, Julian Sanchez of the Cato Institute says that a visit to "" might count as metadata, but a visit to "" clearly reveals something about the visitor's communications beyond the simple fact of the visit itself, and that amounts to recording content, which requires a warrant.

And the real point here is that this declaration in the court's ruling, this finding that what's supposedly metadata can actually be content, the principle is across the board - meaning it will apply not just to Google, but to the Justice Department and the NSA and the rest of the spook-ocracy.

This is not completely new territory; the Department of Justice already states that it seeks a warrant when it collects URLs from a suspect's web history and the judges in the Google case cited a formerly secret Foreign Intelligence Surveillance Court ruling that also found that URLs could count as content as well as metadata.

But the DOJ's policy is just that: policy, not a legal requirement. And the FISA ruling was secret. This is public. Both of those differences matter.

Edward Snowden
In some ways, this finding may seem not particularly important since the whole idea of metadata being easily subject to surveillance may be going away. In fact, due to changes in the law driven by the revelations of Edward Snowden, who first brought the massing NSA spying on phone metadata to light, the program is supposed to end as of November 29. I say "supposed to" because the metadata will still be collected, it just will be held by the phone companies instead of the government and the government can still look at it, but it will have to meet a higher standard than at present to do so, at least to do so legally. So, it's better, but it's not really good and metadata being used by the government for surveillance is not going away.

But what matters right now is that while it may just be because that impending date of November 29 makes it seem politically safe, the decision in the Google case is one among some others that hint at an increasing willingness of the courts to challenge the spooks on their authority.

For one example, last May the Second Circuit Court of Appeals found that the Patriot Act did not authorize the metadata collection program. The Court did not rule on its constitutionality, but it did find the program to be illegal.

More importantly, on November 9, US District Judge Richard Leon of the District of Columbia ruled that the NSA's entire metadata-collecting program is unconstitutional and ordered it stopped immediately, finding that the Constitutional violation involved was so egregious that even though it was supposedly going to end in a few weeks anyway it could not be allowed to stand another day.

Ellen Rosenblum
The ruling has a limited legal impact not only because of the time frame involved but also because, technically, it only applies to the two plaintiffs who brought the suit. But the principle involved - the finding of unconstitutionality - is important and will clearly survive the date of November 29. The ruling is significant precisely because courts so rarely challenge the spooks waving "national security" banners. David Greene, senior staff attorney and civil liberties director for the Electronic Frontier Foundation, says it could set a precedent for future cases involving spying on citizens and residents of the US because the NSA defends many of its programs by invoking the same sort of arguments that Judge Leon rejected. So while this is limited Good News, it is still Good News and it offers hope for bigger Good News in the future.

In a related matter, since it involves government spying on citizens, the att gen of OR, Ellen Rosenblum, has said she is "appalled" by the discovery that the state's Criminal Justice Division, which she supervises, had been tracking the Twitter feeds of a number of OR residents based solely on their use of certain hashtags, particularly that of #BlackLivesMatter.

Wile she gave no details on the scope of the digital surveillance, she did say she is investigating it and strongly suggested the practice was to stop. Which, again, is good news.

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