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Comment by Aloha | Hacker News Reader

I have mixed feelings about this.

Some of the metadata in my opinion is obviously OK to collect - the stuff that would have been captured by a pen register decades ago - Who you called, who called you, how long you talked - this stuff, which is otherwise known as call detail records it available to nearly everyone who works for the telco and is not really what I would consider private.

Other stuff - like Geolocation data is in my opinion clearly not OK to collect - it constitutes an unreasonable encroachment on privacy, normally to track someone historically a warrant must be obtained first, and it required probable cause, I see no reason why a lesser standard should be applied here.

I don't consider blanket recording of calls to be acceptable, but I don't see that as something that has been happening, at least on domestic to domestic endpoints (it's not really technically feasible to do with the way the telephone network is structured), its a bit easier to record calls going to international endpoints because of the structure of the PSTN - VoIP is its own deal, and YMMV on weather you can actually capture those calls or not.

I don't want to see us throw the baby out with the bath water as it were, nor do I want the unreasonable encroachment on privacy to continue.

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I disagree. I interned twice at a telco, and while I had access to a bunch of information in databases as a developer, I had no access to call records, and in general you didn't have access to it unless you needed it for work. The problem is as I understand it, the NSA currently has the view that if a corporation has access to it, then it's not private and they get free reign. It's not that I don't expect Google to have my gmail records, or my phone to have call records and geolocation. Those companies can use that data to improve their services to me. It's when the NSA decides that they have access to all of this information from all these companies is when I have a problem.

Different companies, different policy, I worked in customer care, and later in a quasi-engineering role. In both cases, and two different companies I had full access to customer CDR's.

Which two? I'd appreciate being able to avoid those companies.

That's kinda silly unless you can confirm that the other companies are not doing exactly the same thing.

It's really all of them - If your doing a job that involves either customer care, or resolving call based issues, you have the ability to: See call detail records, sometimes capture voice calls to and from that subscriber, capture signalling data in realtime, track a mobile user in call thru the system for the purposes of finding defective network elements.

There is a good reason why we had these abilities, they were essential to resolve and troubleshoot user reported issues.

For example, if a customer reported troubles or call quality issues calling 202-555-1212, I needed to be able to pull their CDR's so I could determine which outbound trunk group the call went out on, so I could report it to that carrier to see if they could resolve.

> There is a good reason why we had these abilities

Bullshit. Systems can be designed to allow troubleshooting and problem resolution without giving broad access to user data. Telecoms are just too lazy to do it. They have local monopolies, so they just don't need to care.

I've written tools for VoIP companies for diagnostics. The most helpful system is one that logs everything and has it available on-demand. The one I wrote literally recorded and indexed every call-related packet (except audio) and records were kept indefinitely. This is network-level traffic. It reduced time-to-resolution by at least an order of magnitude, since a ticket to the effect of "this weekend someone at the office called someone in Germany and it didnt work" could find out exactly what happened.

Apart from that, call detail records (CDRs) are available to many people in a telecom. And it doesn't matter if you trust your telco, because they probably hand off traffic to others in many cases. Even large companies like AT&T deal with very scummy third-parties to get the cheapest prices to place calls. (I know that first hand, because sometimes people sell call capacity they don't have. Instead of completing the call, they answer and play a fake recording of someone saying "wait a sec". Once, when dialing from my AT&T cell, I got the same exact recording I had PCAP'd from some third-rate provider.)

Unlike email, where you don't need to provide access to email records in most cases, CDRs are needed for all aspects of billing. While your complete profile may be relatively safe in a large company with internal controls, depending on your calling patterns, you may very well be leaking a lot of details to many third parties you've never heard of.

Edit: You could theoretically add all sorts of controls and access-limitations. There's really zero benefit to doing so. Plenty of companies still rely on techs being able to run tcpdump on a mirror port or server in question.

Pretty much exactly my point of view.

We had the problem with low cost carriers too - though it was usually a quality issue, some customers because of the nature of their business (e.g. lots of fax calling) we would push them on to generally high cost TDM trunks via the local LEC versus lower costs VoIP trunks with level3 or other carriers.

I wish I could convey to people that they need to trust that their carrier is not just sharing their info beyond what is required to make the network work and what is legally required of them by the federal/state/local government.

I wish I could also explain more about how the telephone network, works. Like, how its virtually impossible to record every single call made in the US in a blanket sort of way, and that every transiting carrier from here to there also has a slice of their information.

> You could theoretically add all sorts of controls and access-limitations. There's really zero benefit to doing so.

Wow. That, right there, is the problem. You don't have to care about other people's privacy, so you don't. You're not accountable, and neither are the companies you work for.

I hope there's a disgruntled insider at one of the companies that uses your tools, and they vacuum up all the data they can find and leak it. Maybe a public scandal could make you care, if it affected your bottom line.

Have you ever worked in a support role?

Hah. I don't mean to be condescending, but the security in telecom is laughable. I've tested nearly a dozen systems and networks, and in every case never had to spend more than a day getting root. (I'm sure there are decently designed ones, but that's not the common case.)

I had the CTO of one of the major switch vendors tell me that "buffer overflows aren't a problem, unless maybe the network is very fast". This is a company that markets an edge device with security being one of the main bullet points.

Not to mention, I'm willing to bet in many datacenters, you could literally just walk in and take disks out of machines. If they've got RAID and no alarming on RAID (not too uncommon) no one will even notice. Sure, some places have solid cages or require escorts. But a lot of colo space is relatively unmonitored and so long you look like you belong there and get past perimeter security (as easy as renting 1U in the same place, often) you're totally in.

And the sad part? To my knowledge, these attacks aren't that widespread. Why? Because there's even lower-hanging fruit that's more lucrative to hackers.

Anyways, to your point: How would this access control work? How are you going to verify a CSR actually got a call from a specific customer? How much effort are you going to put in verifying that data? This is an industry where tons of money is charged and moved around based purely on emails received, with zero verification. Also remember that full wiretap capabilities are a federal requirement (CALEA). So somewhere, they'll have a system that can turn on lawful intercept. That avenue is probably ripe for abuse.

You're right in your overall sentiment. The FCC and federal government should enact privacy laws and force companies to internalize this externality. Until they do, there's little reason to make it any more difficult for support to do their job.

Reminds me of a linux based edge router/SIP ALG product we used at a former employer if you put it on a 20 meg or faster symmetrical pipe, it would fall over, and eventually hardlock. Bugs in the drivers and a lack of hardware acceleration for the ethernet cards.

A popular ISP in one country shipped default DSL modem/routers with a SIP ALG on that didn't work. But not just the normal "totally screwing SIP up" but the alarm light would go on and the modem would be dead until power reset. On any SIP packet. This was over 6 years ago, but I think it was a ZyXEL.

the ZyXEL Modems were horrible in general. My preference was to use an Innoband 8012 and let the customer get their own router.

So, a typical scenario.

"I had an incoming call come in at 3pm, no, I dont know the number, and I couldn't hear them/poor quality audio, can you check and see what was wrong?"

"Everyone who calls me from johnstown says I have a really bad echo"

These require either the calling party or the called party, you need to be able to locate what network element they touched. At every company I had to sign a generic NDA to not disclose customer information without consent from the company. In the end though, you don't own this data, the company you contract with for service does - you'd need to change the contract with them to get control over it.

Adding the restrictions you propose would just make things more complex, not better. In the end, someone you don't want to have access will still have access - you need to trust the company you do business with to have good policy restrictions to protect their data, and your privacy.

You're just illustrating my point. Telecom systems are currently designed without privacy in mind at all. It would be possible to design these systems such that privacy was respected, but telecoms just don't care.

> you need to be able to locate what network element they touched

That doesn't require or justify you having blanket access to call metadata as a customer service technician. Instead, in a reasonable system, users would grant limited access to account data on a case-by-case basis. For example, a user could use a website or app to report a recent call as bad quality, which would grant access to a technician for that call only so they could investigate.

The number of people in the company with blanket access to all user data should be very, very low. Certainly nobody in customer service should have it.

The telecoms legally own this data, its theirs, and its needed for all sorts of internal functions beyond just customer care - but lets focus on customer care:

Without this access how would you:

Create Trouble Tickets on call quality when the customer cant give very precise information?

Give credits on miss dialed calls to overseas destinations?

Explain charges on a customers bill?

Open tickets on calls that cant complete - the example above "someone called Germany on Saturday, can you check and see why it didnt go thru?"

I mean, I'd be interested on what form you think these access systems should take.

There should be better ways to report call quality issues than calling up to wait on hold for an hour to tell someone "fix it for me". Problem reporting should be mostly if not entirely automated. Google Voice, for example, has a "report bad call quality" option in its list of recent calls. Reporting other kinds of issues like failed calls could happen the same way.

For situations where phone support is still required, automated systems can still enforce that a technician can only access data relevant to the user who is calling, and that access can be logged, audited, and reported to the user on their next bill.

The important thing is that users should give limited consent to access data for troubleshooting, and that access should be enforced by automated systems, not NDAs. Technicians do not need and should not have blanket access to user data.

Really, a lot of the problems you describe have been created by the telecoms for themselves. Telecoms rely on antiquated and terrible old equipment, and that causes the call quality issues. If they invested in updating their infrastructure, they could have consistent better quality calls and automated monitoring. But they have no incentive to update their infrastructure when they already have oligopolies or monopolies. My phone has a 10 Mbps connection to the internet and yet phone calls still sound like they're happening underwater; it's a joke! Billing complexity is an even more obvious example of a problem the telecoms have created for themselves.

Ironically, the carriers who have the most billing and call quality troubles are not the legacy incumbent local exchange carriers, its the newer VoIP based carriers.

In your 10mbps scenario its either a lack of QoS on your circuit (either from you or your ISP) or poor generally qualities of the end to end connection - like too much jitter or something.

Even if we had an automated ticketing system that let a customer pick which call was bad, they wouldn't use it. Also keep in mind, every customer along the path would need to do this. There might be 5 or more companies involved in completing a single call.

The end-user might report it to their local PBX guy. He's going to call his wholesaler and say "yeah sometime over the weekend, someone made a call from somewhere and something didn't work right". If the wholesaler is lucky and can comb through data, they might find the call in question. Sometimes the answer is "uh, you hung up" or "...yeah, so you got a busy tone". Most of the time, if you can actually find a problem, you forward it on to the offending carriers, and they repeat the search and forward it until it hits a real network. The answer to the end-user is mostly "Sorry about that, we've made some routing updates." and hopefully they won't experience the issue again. If the end-user repeatedly has issues, it's probably a question of their line not having proper QoS, or something else their local PBX guy needs to sort out.

The "antiquated and terrible old equipment" is actually the least likely to cause issues. As much as I hate telecom, the real switches do a solid job. Dedicated hardware on TDM leaves far less place for problems. VoIP is the real quality issue most of the time.

I swear - did we work at the same company?

You're echoing my experiences in such complete detail, its almost scary.

I too interned at a telco and I was given free reign over this kind of data -- and more. As were some external, temporary contractors.

I wrote a little about it here: https://news.ycombinator.com/item?id=5969957

There are scaling effects here which I don't think you're taking into account.

We're not talking about pen registers or targeted investigations anymore.

We're talking about big data techniques, trawling through massive databases to find related suspects and evidence of suspicious behaviour. A guilt inference engine. "Google suspects".

This is both quantitatively and qualitatively different from your view that "CDRs are available to people who work at the telco".

I'm somewhat OK with big data being used in this case, these are cases that traditional police work cannot be used in. So long as our court system remains a strong protector of the innocent, big data in this case is used to generate a list of people to talk to, to interview, and often to rule out. I'm very leery of thoughtcrime and guilt by association, but its up to the courts to make sure we are protected, and that the rights of the innocents are protected.

I believe this gets to the crux of the argument. Broadly, I think there are two views on why the U.S. has laws regarding "unreasonable" search and seizure:

a) Being searched all is unreasonable because it inconveniences those being searched, takes up their time and involves a degree of forced submission.

b) Being searched all the time is unreasonable because it grants the government too much power over the individual. The government should not be able to snoop into the lives of private citizens without good reason. True freedom and perfect enforcement of crime are incompatible.

You can hold (a) or (b) or both. Digital searches happen quietly and invisibly, so is it OK to be constantly searched if it involves no personal inconvenience?

I believe you hold mostly position (a), whereas those who believe this program is bad (including me) hold (a) and (b).

Correct. I largely hold position (a). I believe in position (b) as well, but there is a bar there, if something is above a certain level of invasion in invokes my belief in position (b) otherwise I consider it to be generally acceptable. Geolocation data is one of those things that invokes position (b) because I consider it to be an unreasonable invasion of privacy.

I just don't get it.

Based on parent comments, you're ok with the government knowing WHO/WHEN you call someone. But you have a beef with the government knowing WHERE you called from?

And your basis for that is that they've always been able to collect WHO/WHEN, but WHERE is different because it's new?

The geolocation data is not tied to placing a call, the cell carriers keep and have a record wherever my mobile terminal is whenever its turned on and registered. Its tantamount to putting a GPS tracker on my person. This to me is a totally unreasonable encroachment on my right to privacy.

The where attached to a placed call is a grey area for me. It's might be acceptable, it might not, because where is a given when using a landline.

Cool arbitrary line in the sand you're drawing there.

It's not really arbitrary - its based on what kind of monitoring you could do on a traditional telephone.

Point (a) isn't sufficient to understand the 4th amendment.

For example, the Supreme Court in Kyllo vs. U.S. decided that using a thermal imaging device to scan houses to find indoor marijuana farms is an unreasonable search, and reversed Kyllo's conviction for growing 100 marijuana plants.

You'll easily note that scanning a house from the street does not inconvenience the person being searched, take up their time, or involve a degree of forced submission.

For another example, the Supreme Court said that attaching a tracking device to a car without a warrant is also an illegal search. This also does not fit the criteria of (a). (While it immeasurably slightly worsens mileage, the court decided that it was a form of trespass. One does not need to be present in order for trespass to occur.)

For a more historical example, Ex Parte Jackson (1878) says "Letters and sealed packages subject to letter postage in the mail can be opened and examined only under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be."

Again, 4th Amendment protection of letters exists even when the conditions of (a) are not held.

This is the same reason I find disclosure of geolocation data collected outside a call without a warrant to be an unreasonable search.

Could you be more explicit on which reason is this "same reason"? I listed several reasons.

Do you think law enforcement use of E911 pings without a warrant is trespass on your possessions, which was the reasoning behind the US vs Jones (2012) case I mentioned?

In any case, United States v. Graham disagrees with you. Geolocation data is "information voluntarily disclosed to a third party" and so "ceases to enjoy Fourth Amendment protection."

What do you find wrong with the reasoning in the Graham ruling?

In reviewing your other comments, it sounds like you also disagree with the conclusions of pages 47-56 of this most recent opinion by Judge Leon, where the judge describes how collection now is different than from a few decades ago, and in a manner that the Supreme Court has indicated other cases indicated may have substantial 4th amendment concerns.

Why specifically do you disagree with the reasoning behind his opinions?

Obviously US v. Graham (US District Court for Maryland) and Leon's opinion (US District Court for DC) are at odds. Leon points that out in his own opinion, on p66. It's going to take the Supreme Court (or a big change in the law) to sort this one out for the US.

I would argue that the e911 data is not a voluntary disclosure. The cellular companies were compelled to generate and provide this information, as well as generate and store hordes of other information to assist law enforcement. In short, I don't think the government should be able to compel a company to store a class of data about its users, then because now they are holding it (at the behest of the government), then strip the data of privacy and compel the cellular companies to provide it to law enforcement.

I don't find a substantial difference between the police planting a tracking device on your vehicle, and requesting geolocation data records for your mobile phone, they achieve largely same goals, thru only what I consider marginally different means - meaning, both should require a warrant.

The exception to that would be geolocation data that is generated as part of making a phone call. I want to hold the line on what can be monitored to the era before always on mobile communications devices. Just because the data is there, does not mean it should be able to be gotten without a warrant.

i think I find your reasoning flawed, as a matter of personal opinion at least.

> Who you called, who called you, how long you talked - this stuff, which is otherwise known as call detail records it available to nearly everyone who works for the telco and is not really what I would consider private.

I see what you're saying, as applied by the Smith v MD, that the information in a PEN register is fair game, but even in Smith, the collection of records had to be manual, which prevented its collection and use en masse, meaning that its application was self-limiting. Sure, the police could probably collect all the PEN registers, but as most of it would be useless, why would they?

Regarding your earlier statement though, for some perspective, had the British been able to keep tabs on the metadata of the populace, our founding fathers would have all been hanged for treason, and America would never have declared independence.

I don't mean to suggest that being subjects of Britain would be necessarily bad, but I think it's fair to suggest that our founding fathers considered their actions just, and as a matter of course, would have likely considered actions that would have resulted in their death equally unjust. If you agree, I think that should have some bearing on your interpretation of the fourth amendment.

The collection of records has not been manual since sometime in the 80's - the switch can generate a report of all this data. But I get the point.

I think metadata alone is useless - it gives you associations, not content, you could be calling someone not very nice to talk about the fact that they owe you money for work you did on their car - or about blowing something up. All this metadata is useful for is generating leads for traditional police work (aka shoe leather) to follow up on and dig up information the old fashioned way.

I'm confused as to why you'd be against the collection of GPS metadata then. GPS data is, effectively, only associative metadata. It can tell you where you were, and when you were there, but not what you were doing. That's why I'm having a hard time finding consistency in your position.

That isn't meant as judgement of you, by any means... the entire issue is a morass. We want law enforcement agencies to be effective (assuming that we're not acting criminally), but we don't want them to be overseers.

I personally think that the precedent is for us to err on the side of liberty over justice, and I think that in the spirit of presumption of innocence and all that, but that's influenced by confirmation bias, at the least.

It depends on the KIND of GPS metadata - the GPS that is generated when I call happens is attached to the call metadata. The Metadata that is generated just by having your phone on is not. I'm ok with things attached to calls, I'm not OK with blanket tracking of peoples locations.

The standard that I use is what information would you have gotten from a pen register in say 1973 or at least inferred from other sources of data, which is, calling party, called party, duration of conversation, location of parties in call, and really nothing more. Which leave out whole hosts of other kinds of data, like e911 pings, and tower data (showing all the users on the tower) and so on. Because much of this data is compelled to be kept by the government beyond what would be needed for engineering purposes (or in the case of e911 data generated by order of the government) it most certainly shouldn't be available without a warrant.

I find your argument, which is based on what the government compels others to do, to be oddly limited. You often focus on the phone call aspect of a phone, and compare it to a 1970s pen register. But that doesn't fit with modern phones.

An SMS message, or a smart phone check for new messages or to get map data, would under the 1970s technology parallel be implemented as a phone call. Under your logic, law enforcement would get all this information as well, no?

If so, most smart phones positively leak information. (Note that according to Judge Leon's opinion, it's not known if the metadata we're talking about includes data related to text messages. See p52, footnote 56.

If not, why not?

Also, the current system captures more information than a 1970s pen register. As footnote 57 points out, the pen register in the 1970s Smith decision did not keep track of if the phone call went through, nor the length of the call. It then points out the difference between building location from the 1970s, and caller location from mobile phones, with reference to New Jersey vs. Earls. 'the New Jersey high court found that "cell-phone location information, which users must provide to receive service, can reveal a great deal of personal information about an individual."'

So at least in New Jersey there is a distinction between the two.

The point in Judge Leon's opinion is that "This rapid and monumental shift towards a cellphone-centric culture means that the metadata from each person's phone "reflects a wealth of detail about her ... associations" ... that could not have been gleaned from a data collection in 1979." (page 54).

While you are entitled to your beliefs, I would enjoy it if you compared your beliefs to the actual opinion under discussion.

I should point out, the original post I meade that spawned this rather large thread, had no bearing on the decision - it was my opinion purely.

Something else I should point out - there were mobile (pre-cellular) phones in the 1970's and some geolocation data could be implied from their use - because in most cases they couldn't roam beyond their home area. For what its worth, some of this data could have been gathered as early as 1979 - when the first AMPS systems were being turned up.

Beyond that - I guess what I'm looking to say is, landline equivalence, I don't think you should be able to collect more information about a mobile phone user than a landline one, even if the information is there - at least not without a warrant.

My discussion here has really been about what is acceptable without probable cause and a warrant, and not just for the NSA - but for all Law Enforcement Agencies. I think Call Detail Records and Call Associated Geolocation Data is acceptable, but really, nothing else, not without probable cause and a warrant, I even think that using big data techniques on CDR's is novel and worthwhile - but it should be as a clue to find more information thru old fashioned police work, not as the end evidence.

Yes, I do believe I understand your argument. My question to you is three-fold:

1) the judge gives 10 pages of opinion, with 4 distinct points, on why land-line equivalency cannot be used as a guide. Can you speak to why you disagree with those 4 points?

2) Do SMS and app data count as "telephone calls"? Does an open TCP socket, which isn't in use, count as a "telephone call"? Under a landline equivalency doctrine, your answers must be yes. In that case, if most people's phones check for messages automatically every 5 minutes, then is there really that much of a difference than what we have now? Will your view change in the future when peoples' phones connect every minute, or have a continuous connection?

Also, since you mentioned the start of this rather large thread, there's another point. You said "I'm somewhat OK with big data being used in this case, these are cases that traditional police work cannot be used in"

Judge Leon pointed out that the government has provided no evidence that "big data" was used to solve any case, and that a government witness has stated that most of the times other methods could be used, only that metadata gathering is faster and cheaper.

3) Given that, how do you draw your opinion that traditional police work cannot be used in this case, when the government themselves cannot convince the judge?

> It depends on the KIND of GPS metadata - the GPS that is generated when I call happens is attached to the call metadata. The Metadata that is generated just by having your phone on is not. I'm ok with things attached to calls, I'm not OK with blanket tracking of peoples locations.

Maybe I'm fully mistaken here, but I think that's the exact same KIND of GPS metadata, which is that generated by tower triangulation. The way you phrase it, I interpret the latter type of GPS data as that which is generated by the internal GPS chip on a smart phone, but to be sure, the police can track the location of a dumb phone through triangulation when a phone is just 'on', without the requirement that calls be made, and the mechanism is the same.

Why is the former special, when the mechanics are exactly the same?

Because you have to do something beyond having your telephone ready to use, like making a call - and the call associated Metadata is a given, location is somewhat inherent to a landline.

> Because you have to do something beyond having your telephone ready to use, like making a call - and the call associated Metadata is a given, location is somewhat inherent to a landline.

Concerning cellphones, that is a distinction that only you make. Network-based location service doesn't make it, nor do the authorities, nor do the telcos, nor does your phone. Network-location can be done even on dumb phones, and if they can capture your location from making a call, they can capture your location without you making a call.

Regarding handset-based GPS technology also does not depend on whether or not you're actively making a call or not. Obviously, this excludes dumb phones that don't have GPS, but location tracking is done anytime your phone is on and the GPS radio is active. if the GPS radio is inactive, network-based location still works. If your phone is on, your GPS radio is active, if someone is tracking you based on that information, it makes no difference to them whatsoever whether your phone is making a call or not -- you are just as trackable either way.

Beyond this, again, I fail to see the distinction anywhere. If we're just talking about what's in Smith v MD, which was decided in 1979, then we can exclude all cell phone data whatsoever, as they weren't in use then. If we're talking about just landlines, then the content of the calls would be excluded anyway. Either way, none of it is necessarily conclusive without the content of the call itself, because anybody could have made the call.

I'm just confused as to where you chose to draw the line specifically, as there really isn't a line there. You're of course welcome to make the distinction however you like, but if you're basing it on some precedent, I'm afraid there isn't any. If you're basing it on technological limitations, then again, there isn't any. If it's just your personal preference on how trackable you think you ought to be, then I'm worried you're dramatically underestimating the implication of what you're saying.

For what its worth - I didnt read the decision because when I started this thread, I was commenting on an NBCNews article.

That said, I largely agree with the judge - I think I didn't know the full details - I didn't know the government kept historical data for 5 years. Based on the early reports, I presumed they kept the last 90-180 days on hand in an indexed database and if not needed it was aged out. So I made some assumptions of what was going on, and they were much more limited than reality.

I think that moment has hit all of us at some point. I remember seeing the first of the Snowden documents roll out, and thinking "Well, duh, of course they are."

It wasn't until probably months later that I realized how much greater the scope was in reality than even the worst of what I'd assumed... that this[1] had been built, basically, to accommodate all the data they were acquiring... that they had hooks not just into the telcos, but into the ISPs, and into service providers like Google, Facebook, et al.. It wasn't until well later that I realized that, now that the public has heard about this and exclaimed how against it they are, that nothing would be done without fierce political pressure.

Also, I'm betting the 5 years is just a target figure, or, more qualified, I bet what they actually mean is "at least" 5 years. Of course, having seen everybody involved with this lie at least once, and brazenly too. This is the first step in making all this go away, or at least paring it back to something reasonable. I'm not comfortable with every communication being tapped that the government just happens to be able to get their hands on.

[1] - http://en.wikipedia.org/wiki/Utah_Data_Center

I take it from your answer that you haven't read the court decisions I mentioned?

That's okay, I haven't read all of them either.

E911 data is a subset of geodata. US. v Jones concerns tower data, which the business captures as part of its normal business. This is not under mandate from the government.

"A majority of courts" (quote from p9) "have concluded that the acquisition of historical cell site location data pursuant to the Stored Communications Act‘s specific and articulable facts standard does not implicate the Fourth Amendment, regardless of the time period involved."

By your argument, since the phone companies are not compelled to store this historical geodata, then it's okay for the police to access these records.

"I don't find a substantial difference..."

Congratulations. But there is a substantial difference anyway. Trespassing on someone's car, in order to plant a tracking device, is quite different than, say, tailing someone to get the same information. The courts have said that the first is illegal. The second is definitely not illegal, even though it provides the same information.

I understand that you want a limited, very technical distinction on what information law enforcement cannot get from cell phone data. You base your argument on similarity to what land lines provide.

In doing so, you reject the 10 pages from this most recent legal opinion of Judge Leon which characterize why this similarity is not appropriate.

In doing so, you ignore other technical ways that law enforcement can and does get geodata from mobile phones even without using government mandated methods like E911. The government can bypass the phone company entirely and use IMSI catchers. By your logic, which only looks to see if the government is compelling a person or company to do something, then IMSI catchers are acceptable.

Would you kindly read some of the relevant court judgements, hopefully starting with this most recent one by Judge Leon, and comment with regards to them?

So long as our court system remains a strong protector of the innocent

No one is "innocent." It's just a question of which laws count, and who decides.

Can someone explain how big data makes something less legal? I really am not aware of a legal precedent on this.

"I don't want to see us throw the baby out with the bath water as it were, nor do I want the unreasonable encroachment on privacy to continue."

I believe you have a valid point about moderation being the key here. Obviously there are bad people in the world, and obviously the state has a need to investigate their actions in an effort to protect us from them. And it is always a mistake to go around with your hair on fire demanding absolute answers to nuanced questions.

But right now from where I'm standing? I'm happy with throwing a lot of baby away. Maybe we keep his foot. Or a toenail. Rest of him's gotta go.

Here's the reason why: we are at the end of a slippery slope, not at the beginning. We started off with the state knowing next to nothing. Bit by bit, over the decades, they've encroached more and more. We've got to roll this back and take an honest look at whether all that we've lost was worth it.

I actually would argue we're about half way up, we can choose to continue to slide down the hill, or claw our way higher, and have the government have less access, or 'give up' and slide down the hill, hoping that the overlords are benevolent. I personally want to claw our way a little higher up the hill again.

I agree we're on a slippery slope, but disagree that it's a slope of state encroachment. The precedents at issue here are decades old (the line of cases starts in the 1960's), and even the first time the 4th amendment status of phone calls came up in the 1920's, the Supreme Court determined that they were not protected because the phone company had access to them.

The government has not been invading previously protected spaces. The slope here is people broadcasting previously private information indiscriminately into the ether, to locations that the government always had access to.

I believe that you are saying that the people, by using new methods to communicate, are encroaching in on government's "natural" right to scrape up everything it possibly can?

That's certainly an interesting way of looking at it. The government retains all the rights to collect anything it can, and it's up to the citizens to act in such a manner as to stop it.

Please correct me if I missed this. Fascinating 180-degree reversal of natural rights.

Constitutionally, if an end is generally within the federal government's enumerated powers, the government can take any steps "necessary and proper" to achieve that end, unless it infringes on a right. That's basic U.S. Constitutional law since 1819.

It has been long understood, since at least 1963 if not earlier, that the federal government does not violate someone's 4th amendment rights by acquiring information that a person has voluntarily disclosed to a third party, on the very reasonable grounds that if you risk someone disclosing that information by divulging it to them, then it's not really private information.

What you've seen since then is not an encroachment of the government into areas previously considered private. Instead, what's changed is people sharing "private" information in ways that were never protected: specifically by exposing them broadly to third parties.

Well, there it is. The administration's case. It is legal.

However, my question was along the lines of political theory, not constitutional law. There's no doubt that some really powerful legal minds have concluded that all of this is legal, but can a government function this way? Obviously this type of information collection and storage wasn't happening before at this scale. Obviously it is now. Aside from the most likely correct reading of the constitution, does it not seem from a simply observational viewpoint that something is now amiss? Would it not be reasonable for the average citizen, looking back on decades and centuries of private conversations with his friends, meetings which did not involve public records being kept, and private papers immune from government scrutiny, to wonder if somehow he wasn't getting the short end of the stick compared to his ancestors? Or is your response that since it is legal, our citizen should just shut up? Or perhaps you have something along the lines of "elect representatives who will then pass laws"

I find it fascinating that the status quo has changed so much, and because a technology shift was involved, your presumption is that it is the citizen who should have been more wary, lest his personal affairs become part of the public record. Especially since 1) officials have been very careful not to allow the citizens to know what they are recording and what their capabilities are, and 2) It's virtually impossible to live in the modern world without "broadcasting"

If you've got something else besides "but it's legal!" I'd love to hear it.

Thanks for the engagement, btw.

> However, my question was along the lines of political theory, not constitutional law.

There is an important practical reason for drawing the distinctions and putting things into correct legal perspective: if you believe that the government has slowly chipped away at legal rights that used to exist, then it's harder to justify believing that political action can change the status quo. On the other hand, if you recognize that what you really have is a disconnect between peoples' behaviors as enabled by new communications technologies, and the government's acting pursuant to established law, then it's much more justifiable to believe that political action can change the status quo.

As for whether the government should collect less or people should be more wary of broadcasting their private information, my answer is: both. I think laws are necessary to create protections for electronic communications that didn't exist before (and I think those laws could work because I don't believe the government is just ignoring the law). At the same time, I find it a little bit disingenuous for people to complain about being tracked when they carry little tracking devices around with them.

Ultimately, what you'll see is a shift in equilibrium of privacy. I don't think you can structure the law to hamstring the government so much that it doesn't know anything more about you than it did in 1975. Not in an era when people broadcast their bowel movements in real time to their thousand closest Facebook friends so that companies can spam them with advertisements for the best laxatives. Socially, we're in a post-privacy era in that regard. Though I do think you'll see the equilibrium fall at a point short of "the government collects everything, all the time."

I'm not sure I'm getting any more detail with your last response. It seems that you are wanting to shift the discussion now from "But it's legal!" to more along the lines of "But whether people think they have a chance at changing things is important!" This is interesting, but only if you assume the entire situation is in the toilet and your goal is simply to try to mitigate a disaster approaching on the horizon.

I'm not so sure that such mitigation is possible or wise. As I recall, the entire reason for having a Bill of Rights was the fear -- to the point of considering this a certainty -- that the government would encroach on individual rights and continue encroaching unless it was specifically forbidden to do so. Now perhaps from a civil unrest viewpoint it's better to have the plebians thinking they have a shot at changing the great ship of state by the traditional democratic process, but I doubt the founders would have believed it. For historical reasons.

I have no idea if the "post privacy" world is upon us or not. If I have any say, the answer is something along the lines of "fuck no!" but, unfortunately, they do not ask me these things.

I do know, however, that lots of folks view most all current problems through political filters. They tend to forgive more when their guys are in power and condemn more when they're not. This, along with changing up the figureheads at the top of the corrupt political system regularly, has kept a lid on social unrest for a good long time. Here's hoping that continues along unimpeded.

At the risk of playing messenger and getting shot, I'll say this: I think what rayiner's trying to do is clarify the narrative. Right now the dominant narrative on HN seems to be "the government has expanded their powers to intrude on our right to privacy." Rayiner is suggesting that perhaps the government is simply exercising the power it had been granted over years of precedent-setting court decisions (including, critically, the loss of expectation of privacy when information is handed to a third party). According to this alternate narrative, what has changed hasn't really been the government's scope of power, but rather our increasing reliance on third-party services to mediate our interactions in the modern world. As more and more of our communication is digitized and aggregated by third party services, more of our information falls within the government's constitutionally limited scope.

A key point of contention is whether what we're seeing here is the government breaking laws, or the government following laws that simply haven't caught up with the times. Rayiner believes (I think) that it's the latter, and therefore has reason for optimism; as he says, "I think those laws [to protect electronic communications] could work because I don't believe the government is just ignoring the law."

> As I recall, the entire reason for having a Bill of Rights was the fear -- to the point of considering this a certainty -- that the government would encroach on individual rights and continue encroaching unless it was specifically forbidden to do so. Now perhaps from a civil unrest viewpoint it's better to have the plebians thinking they have a shot at changing the great ship of state by the traditional democratic process, but I doubt the founders would have believed it.

This "rights-centric" view of the founding is a bit of historical revisionism that seems to be in vogue as of late. The framers saw republicanism, federalism, democratic accountability, and separation of powers as the key bulwarks against excess government power, not the Bill of Rights. That's why the Constitution is almost wholly preoccupied by defining a blueprint for these things.

Only one of the 85 Federalist Papers is primarily concerned with individual rights, and it's an argument for why a Bill of Rights is unnecessary: http://thomas.loc.gov/home/histdox/fed_84.html. In Federalist 84, Hamilton makes the argument that a Bill of Rights is unnecessary in a democratic republic. In the context of the freedom of the press, he writes:

"What signifies a declaration, that 'the liberty of the press shall be inviolably preserved'? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. [3] And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights." (emphasis added).

> This, along with changing up the figureheads at the top of the corrupt political system regularly, has kept a lid on social unrest for a good long time. Here's hoping that continues along unimpeded.

Well obviously we don't see eye-to-eye on whether its worthwhile to fix the spying issue, because we apparently disagree about whether it's a defect in an otherwise fairly sound system, or a symptom of irreparable corruption. I will say this, however: revolutions are rarely democratic processes. They are, more often than not, a way for radicals and other ideological minorities to impose their viewpoints on the majority. I don't think they're something to look forward to.

Don't know if you can stomach a Heritage Foundation essay, but there's lots of good historical stuff here: http://www.heritage.org/research/reports/2007/12/securing-li...

The important point is that the founders felt such boundaries were mere "parchment barriers", not that such boundaries were unnecessary! just the opposite. The BOR was created because the states would not go along with ratifying the constitution based solely on structural descriptions. Clear and deliberate promises would have to be made, and even then all the parties concerned were dubious such promises would hold out over the test of time.

I agree with that assessment. I think systems of people drift from well-executing to poorly executing. Good systems of people have self-correction mechanisms built in. Our system of government has one such system. Over time, however, the self-correction mechanism itself becomes broken.

I do not necessarily feel that it is irreparable or a revolution is required (as opposed to many of the founders, who privately felt that another revolution was all but certain). I'm simply pointing out that you can't keep beating the same mule and expecting it to continue plowing the field. I think that's the difference here. If I understand you correctly, the problem is one of perception -- if only we could get those citizens happy again! Whereas in my mind the problem is structural -- over time, with the government in basically a state of war with its own population, "keeping them happy" is not in the cards.

I'm not sure what a "fix" would be, but I'm not opposed to any action taken on the issue. Couldn't hurt. The spying issue isn't an issue because I'm upset about it -- the problem here isn't that people are just going bonkers when they realize what's going on (as Senator Wyden describes). The problem is that the democratic system of government itself cannot function over a long period of time with the state knowing so much about the people. It just doesn't work. That's a theory of government problem, not a constitutional or realpolitik one. If you understand that, then you realize that this is the type of problem that exists outside of the structures created to contain it - hence the response that "it's all legal". Of course it's legal. We don't have tyrants out to purposefully destroy our system of government. Instead we have patriotic, brilliant, and hard-working people out to protect us. And these people will continue to game the system in any way possible to make sure we're protected. That's how we got here.

I think if you don't understand how we got here, and you don't understand the nature of the problem, it becomes very difficult to understand what could be done to "fix" it. You might start thinking that you could vote in some handsome slick-talking schmucks who can wave a magic wand around and put the genie back in the bottle. That might be a great recipe for kicking the can down the road, but not so much for actually self-correcting. From where I sit, a few more constitutional amendments are going to be necessary. Good luck taking bets on when that's going to happen.

EDIT: I'll also add that the anti-federalists, you know, those tin-foil-hat-wearing hand-waving guys, turned out to be exactly correct in many of the arguments they made against a federal government. A standing army, use of the executive to control the military and interfere in state's matters, and so on. At the time they were shouted down as being paranoid. Sounds very familiar, doesn't it?

But I honestly do wish you the best of luck in your "vote some good guys in office" plan. Anything that will keep the country on a stable path for another century or two is a good thing in my book.

Just because the third-party doctrine has always been applied to phone records, doesn't mean they were not protected. The court just decided they weren't. The TPD is not law.

I'm normally amenable to the "just because the Supreme Court says so doesn't mean they're right" line of argument, but in this case not as much.

The 4th amendment prohibits "unreasonable" searches and seizures. The word "reasonable" has an important significance, one of which the founders (being mostly lawyers in the Anglo tradition) were aware. When the standard for something is "reasonableness" that essentially commits to the judiciary the task of drawing lines on a case-by-case basis and developing doctrines to guide that task.

In other words, what the Supreme Court says about the 4th amendment has particular relevance because the wording of the Constitution commits to the judiciary, in a special way, the task of determining the scope of the 4th amendment.

Of course, but by the same token it doesn't make sense to say phone metadata was previously protected nor unprotected. It was just an early point (cf. CFAA) at which the gov't made a case that they should never be blocked from getting this information whenever they want, for any reason. Likewise, "reasonable" is really putting lipstick on the pig, since there was really no previous history of use for the data, aside from phone companies keeping it away from law enforcement as a matter of business. Furthermore, as far as the TPD goes, there is no "case by case" basis once the judiciary says, "if the person gives it to a business, it's yours."

You wrote: "the stuff that would have been captured by a pen register decades ago"

Yes, but pen registers (as noted in Judge Leon's opinion today) were different: they lasted a few days and were targeted at an individual. Neither case holds for bulk NSA surveillance that lasts indefinitely and vacuums up billions of records.

In addition, the opinion points out that the "Supreme Court itself has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement ... and cases in which the government an the third party create a formalized policy under which the service provider collects information for law enforcement purposes. ... It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."

All of pp 47-56 are used to contrast "the stuff that would have been captured by a pen register decades ago" with what the NSA does now.

> Who you called, who called you, how long you talked - this stuff, which is otherwise known as call detail records it available to nearly everyone who works for the telco

And to law enforcement with a warrant for a specific person relating to an ongoing investigation. All the NSA just got rid of that pesky legal requirement. Why all the fuss?

Also that anyone at the telco that used that information, if that got out that anyone probably wouldn't have a job for long.

Call detail records generally don't require a warrant.

I posted this article the other day:

http://www.crypto.com/blog/celltapping/

Exactly my arguments about CDR's, I have mixed feelings about disclosing location with CDR's - but if it were a landline, the location part is sort of a given, unless using a beige box or some other diverter like object (like a DISA on a PBX).

All you really said is that you were comfortable with things the way they are.

I'd like to see some sort of data rights legislation, where when I ask the phone company to please try to connect me to some other person I can expect that they are minimizing access to those details. I wouldn't even mind if my requests related to service problems meant authorizing a period of wider disclosure. That at least changes the tone of the privacy discussions (and 'trusted third parties' are a well carved out aspect of privacy).

I'm uncomfortable with the way things are, I'd rather things be more like they were a decade (or more) ago, which is to say nearly universal access by law enforcement to call detail records on demand, these records might include location call is placed from (for both Mobile and Landline telephones), I'm also comfortable with disclosure of Text Messaging metadata (envelope information), but not Geolocation data attached to texts without a warrant.

I'm deeply uncomfortable with anything beyond this - that includes but is not limited to geolocation data not tied to a voice call without a warrant, taps on IP/Text/Voice content without a warrant.

I (and probably many others) would be more accepting of my data being collected and analyzed if there was an equal effort by the government to make it's own data equally available and easily analyzed. Instead I feel like the government is as secret as ever (and prone to blatant lies) and I'm skeptical of their actions by default.

Can I use any of this new tech to see which lobbyists a Senator talked to before an unpopular vote or listen in on some of those back-room meetings? Or is it only the general population that gets spied on?

One could argue similarly that collecting email is also OK, as emails are also available to nearly everyone who works for email provider company.

I can very easily imagine people who would want to keep the phone call metadata private.

Collecting metadata about email is OK - as in, who you mailed, and who mailed you. This information is no more private than the address on an envelope being sent to you via the postal service. Collecting the email itself I think has a higher bar to cross - the logic used in the CDR collection was akin to that of the postal mail address question.

A question of legal history: Were warrants required to "tail" a suspect? If not, I could see the case being made that indiscriminately "tailing" all cell phone users is an extension of following someone in a car. I disagree that the same standard applies, but from a legal perspective I think it's important to note whether there was a precedent set that allows "publicly available" or "non-invasive" data to be collected sans warrant.

No warrant is required to follow someone in public.

Why do you think call record and geolocation data are 'publicly available' data? How are they accessible to the public at large? If they were accessible to the public at large, the government wouldn't need to ask teleco's for the info, or for permission to install the government's own tracking devices -- if someone in the public at large asks a teleco for this info, they aren't going to get it, it clearly isn't public information.

I would include call record and geolocation data in the "non-invasive" category, because they can be accessed without disrupting the target. On the other hand, "publicly available" data are the publicly observable actions the target takes. Twenty years ago that meant getting in a car and driving somewhere. These days that might also include a Twitter stream or GPS EXIF data on publicly published photos.

I suspect the courts would agree that actual public things, like a twitter stream or publicly published photos, can be viewed and recorded without a warrant. And I would agree with you that that is right and proper.

I find your 'non-invasive' category to be odd though. I am not sure there is any legal basis for 'non-invasive' having any bearing on these issues, nor do I think it ought to. Recording the full contents of all your phone calls would be just as 'non-invasive' as recording the 'metadata' -- it would not 'disrupt the target' in any case. I don't see what 'non-invasive' has got to do with it.

From a legal perspective, I don't know if non-invasive data collection falls under a certain category. I know that authorities cannot enter my home and bug it or install cameras without a warrant. Authorities cannot install a camera in my bathroom to see if I am flushing away drugs, but can they ASK the water company to tap my pipe as it returns to wastewater management? The first action would require a warrant, since they are violating my home and person to obtain the information. If the same or comparable data are gathered through the cooperation of a third party, does that action still require a warrant?

I suppose the standard of 'non-invasive' is whether information is collected directly from my non-public activities (warrant certainly required) or from compliant third parties. Of course if the third party does not cooperate then a warrant will compel their cooperation.

I would argue that ANY data collection on a target should require a warrant issued by a judge for probable cause. So, indiscriminate collection of cell phone metadata would be prohibited, because my metadata is included, and there is no probable cause for surveillance against me.

You might want to read the Supreme Court's recent Jones case re: GPS devices.

One difference is that it's not in a central GOV DB. Shouldn't it be considered private if the company can guarantee me it's not analyzed by the government without my knowledge?

The presumption by many people was that it was available to the government on demand before, it matters little to me if the government has it whenever it asks for it, or has it on file in near realtime - either way, I get no notice that someone has asked for it.

I see, so we might see this as a temporary latency increase that will be quickly argued against or worked around in the name of efficiency.

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