FWIW, NPR had an interesting analysis of the rationalle for this.
There’s apparently a longstanding policy that numbers dialed are not private information. “In the past, you would have had to speak to an operator and ask them to connect you to Nichols Six Five Thousand. That operator could have been subpoena’d as a witness.” At the time dialing systems were introduced, the courts decided that the replacement of operators with machines didn’t change the essential nature of that transaction. And as a result, it used to be fairly common for folks like lawyers (or criminals, or criminal lawyers in any sense of that phrase) to go find a pay phone if they didn’t want their calling history to be on record.
The change here is from collecting the information of a single individual under investigation to doing mass collection of everyone’s records and having computers searching through the haystack looking for suspicious groupings of needles. The administration is arguing that this is only a difference in degree, and is covered by the established precedent. Privacy advocates would argue that it’s a difference in kind and in purpose.
I find myself understanding both arguments. I never assumed my calling history was especially private in the first place. But I do think this rises to a difference in kind, breaks the human-operator analogy, and an actual decision needs to be made… and since the new issue calls for new law, I expect the courts to kick this to the Congress. The question’s going to be whether they have the courage to make a decision at all (hard to posture as tough on defense and tough on privacy at the same time, in this case) … and then what happens when it goes to the president for his signature.
I’m not making any bets. But I still find this all utterly unsurprising. Disappointing, in some places, but not surprising.
