20 November 2013

Having your cake and eating it too: FOIA, surveillance, and individual privacy

It seems pretty obvious now (if it hasn't already been for a long time!) that the government wants to have its cake and eat it, too. On one hand, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester:
...the FBI claims that Shapiro's multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism."
Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.
On the other hand, in response to claims that the NSA's metadata collection program violates the Fourth Amendment:
...Gilligan argued that the government also believes the surveillance is legal under a 1979 Supreme Court case, Maryland v. Smith [sic], that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. 
“In terms of computer technology, things have changed an awful lot since ’79,” Leon replied. “The technology used in that case pales in comparison — pales in comparison to the technology NSA has at its disposal to query hundreds of millions of records … maybe billions of records in a matter of minutes or hours.” 
“Smith’s value may be very limited if at all in this case,” the judge added.
The mosaic theory of the Fourth Amendment suggests that the aggregate collection of information over an extended period of time may be considered a search. As Justice Ginsberg wrote in United States v. Jones (the GPS monitoring case), "[w]hen considered as a collective whole, the monitoring...revealed an intimate picture of the subject's life that he expects no one to have..."

So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Both of these arguments are being made in the same city--Washington, DC--and in fact in the same court--the United States District Court for the District of Columbia. Right hand, meet the left hand.

I've submitted a CFP to Shmoocon to further discuss this issue, so if it gets picked up, I'll be able to flesh it out further.

What do you think?
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