Lawyers from The Electronic Frontier Foundation will argue on Tuesday that the U.S. government’s bulk collection of phone records and other “metadata” is a violation of the Constitution’s protection against unlawful searches.
In a blog post on Monday, EFF said that it plans to make oral arguments before the D.C. Circuit Court of Appeals on Tuesday and will argue that the call records collected by the government constitute “intimate portraits of the lives of millions of Americans” that are protected under the Constitution’s Fourth Amendment.
The EFF is presenting in the Klayman vs. Obama, a 2013 case filed by Larry Klayman, conservative activist, in the immediate aftermath of the publication of data leaked by former NSA contractor Edward Snowden. EFF and the ACLU filed an amicus brief in that case in August.
The government’s argument is that the bulk collection of phone records is legal under a precedent called “third party doctrine,” which holds that there can be no expectation of privacy for information that citizens knowingly convey to a third party. The classic example of this is phone numbers that are dialed, knowingly, by an individual.
EFF says that events have put the lie to “the argument that the bulk collection of private information from millions of Americans is no big deal because it’s ‘just metadata’.” “It’s been disproven by research—and it doesn’t stand up to common sense,” EFF staff member Nadia Kayyali wrote.
EFF will argue that the definition of metadata is murky and often can’t be separated from protected content. As an example, subject line of an e-mail, for example, might be considered metadata, while the content of the email might be considered protected communications under the Fourth Amendment.
More important, EFF will argue that metadata can clearly be used to reveal private information without the need to surveil a conversation. GPS data that shows an individual stopped at a mental health clinic or a mosque, for example, could speak volumes about their state of mind or religious affiliation. Some metadata may constitute a discrete message in itself – like a text message that conveys a donation to a charity or cause, EFF notes.