Journalism in the Public Interest


The NSA Black Hole: 5 Basic Things We Still Don’t Know About the Agency’s Snooping

The recent leaks have shed light on one of the darkest corners of the U.S. government—but when it comes to mass surveillance practices, clarity remains elusive.

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Bob E

June 12, 2013, 7:16 p.m.

Sam & Dina,
I posted the link to the Maryland V. Smith ruling, apparently messages with links are held for moderation. So after someone at Propublica looks at it that link should appear.

Sam in Texas

June 13, 2013, 11:40 a.m.

@Bob E:

I’ve read Smith v. Maryland, and I stand by my initial assertion: do you really think it is appropriate to use a 1979 case in the year 2013?  Do you think that court would really be okay with the much more sophisticated data being stored and transmitted through smart phones today as accessible by the government simply because it is being transmitted to and through phone companies?  The court’s emphasis was on “expectation of privacy”, but relied heavily on the nature of the data collected, that it was somewhat benign in their opinion, which is why they mention that first.  Had the data collection been more substantial, the court would have swung the other way.  This was a 5-3 decision with an abstention, not a resounding majority.

The dissent in Smith is much more convincing, and the majority decision is also quite faulty and flawed (as are a number of Supreme Court decisions, not the least of which is Citizens United).  It does not consider that you can identify the people that you are having conversations with merely by having access to the numbers you’ve called.  If you and that court want to assert that no one has a reasonable expectation that the public is not privy to who they are speaking to, then I don’t know what to tell you.  Better yet, with the multitude of public and private databases available today, I can very quickly build a profile of you, everyone you speak with, live with, and even surmise what activities you have undertaken simply by getting the phone numbers you have dialed.

Lastly, the facts in Smith do not bear out or warrant the current NSA program.  In that case, it was a person making unwanted calls to an individual, and a person of interest and under investigation in an ongoing case.  By contrast, the NSA is now accessing everyone’s records without even a SUSPICION of their being involved in terrorist activity!  We don’t know what happens to that data, who has access to it, how it is used, and when, if ever, it is even deleted or removed when it is clear you are not involved in any terrorist activity.  If that doesn’t spell “Big Brother” and send a chill up your spine, I don’t know what will.

Bob E

June 13, 2013, 7:34 p.m.

@ Sam in Texas,
Respecfully, I disagree with your analysis. (but after all that is what makes interesting courtroom arguments!)

Limited to what we know (as contrasted with what we speculate), NSA has stipulated that they gather numbers called and received, TOD and duration.
That is exactly what the pen registers collected. If, what is being reported today to NSA, is significantly more than that - well that would change the narrative.

Whether we agree with the court’s ruling or not is also immaterial, as it is settled law, until congress acts to make it unlawful, something that they have had 35 years to do.

Setting aside our disagreement on intrepretation, my personal view is that the metadata constitutes business records of the telephone carrier. They can choose to relinquish those records voluntarily or only in face of a court order.

On another note, it is puzzling to me why the DOJ had to obtain a subpeona to get Verizon’s metadata on the Associated Press phones, when NSA already had the same information (and much more)?

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