We now know that every day, U.S. phone companies quietly send the government a list of who called whom and when — “telephony metadata” — for every call made on their networks, because of a secret order by the Foreign Intelligence Surveillance Court. It turns out that this has been going on for seven years (and was even reported by USA Today then); the difference now is that the government — uncharacteristically for such a secret intelligence operation — quickly acknowledged the authenticity of the leaked order and the existence of the metadata collection program.
Should we be worried? At least “nobody is listening to our telephone calls” (so the president himself assured us). People breathed a sigh of relief since first learning of the surveillance because surely there’s nothing to worry about when it comes to such seemingly innocuous information — it’s just metadata, after all. Phew!
Unfortunately, metadata still leaves a lot to be concerned about. There’s more to privacy than just the sounds of our voices: Content may be what we say, but metadata is about what we actually do. And unlike our words, metadata doesn’t lie.
With today’s communications technology, is metadata really less revealing than content? Especially when we’re dealing with metadata at the scale that we now know the NSA and FBI are receiving?
Because at such a scale, people’s intuition about the relative invasiveness of content and metadata starts to fail them. Phone records can actually be more revealing than content when someone has as many records and as complete a set of them as the NSA does.
Voice content is hard to process. It ultimately requires at least some human analysis, and that inherently limits the scale at which it can be used, no matter how much raw material the NSA might have. Intelligence agencies are famously backlogged in translating and analyzing even high-priority intercepts. More content only makes the problem worse.
Metadata, on the other hand, is ideally suited to automated analysis by computer. Having more of it just makes it the analysis more accurate, easier, and better. So while the NSA quickly drowns in data with more voice content, it just builds up a clearer and more complete picture of us with more metadata.
But that’s not the most revealing thing about metadata, or the only reason to be concerned about the privacy implications of a massive call records database. Metadata ultimately exposes something deeper, far more than what a target is talking about.
Metadata is our context. And that can reveal far more about us — both individually and as groups — than the words we speak.
Context yields insights into who we are and the implicit, hidden relationships between us. A complete set of all the calling records for an entire country is therefore a record not just of how the phone is used, but, coupled with powerful software, of our importance to each other, our interests, values, and the various roles we play.
The better understood the patterns of a particular group’s behavior, the more useful it is. This makes using metadata to identify lone-wolf Al Qaeda sympathizers (a tiny minority about whose social behavior relatively little is known) a lot harder than, say, rooting out Tea Partiers or Wall Street Occupiers, let alone the people with whom we share our beds.
It is, in effect, a National Relationship Database. We might reasonably wonder how any of this could possibly be legal. Doesn’t electronic surveillance require a warrant based on evidence of wrongdoing?
Yes, but a peculiarity of U.S. surveillance law gives call metadata less protection than call content. There are generally stricter requirements for wiretaps that intercept call content than for those that obtain only transactional data (the who called whom and when).
While the legal rationale for this distinction is complex, it’s important to know that it has its origins in how landline/ wired telephones worked and were used in the last century. There’s even a legal theory that while the audio of a telephone call is intended only for the person we’re talking to, the numbers dialed are legally less “private” because they are given voluntarily to a third party: the phone company.