The Privacy of the Social OrganismKaren Greenberg in The Crimosn, October 03, 2013
Did you know that a detailed portrait of your doings can be generated solely by analyzing your Facebook friends? With this information, the government can pinpoint your exact location and gather information about your political and religious affiliations. In fact, analysis of the metadata of your interactions (a set of data attached to the content which provides simply details, like the recipients of your emails) provides, according to The New York Times, “more complete and predictive of behavior than could be obtained by listening to phone conversations or reading e-mails.” According to newly disclosed Snowden documents, this type of data analysis has been employed by the NSA to mine its massive collections on Americans, generating sophisticated graphs of social connections that can not only generate profiles, but that can recreate and predict your behavior. While such a practice is legal, most privacy legislation pertaining to electronic surveillance is founded on practices of wiretapping and does not account for other types of communications such as online social networking. New legislation needs to be considered in order to protect an individual from such invasions of privacy; the current legal framework needs to be updated as our society undergoes a technological change.
In an age in which networks are on par with, or perhaps more important than, its individual constituents, a new question needs to be addressed with regards to privacy: Is our social network more telling of our person than our particular interactions with individuals? The Snowden documents, as well as experts, suggest it to be so. Karen Greenberg, director of the Center on National Security at Fordham Law School, said that the system employed by the NSA, “tells an extraordinary amount about who you are…To pretend that you have to read the information to be going into what a person is doing is making a false distinction." Her opinion echoes that of Orin S. Kerr, a law professor at George Washington University, who believes “Metadata can be very revealing…Knowing things like the number someone just dialed or the location of the person’s cellphone is going to allow them to assemble a picture of what someone is up to.”
If mining social networks through metadata is so telling of an individual, its practice needs to be reevaluated as a privacy concern. In 1967, Katz v. United States overturned the ruling of Olmstead v. United States (1928) by expanding the Fourth Amendment to include unphysical intrusion with regards to technology as unconstitutional, in effect extending constitutional protection to all areas in which a person has a "reasonable expectation of privacy." Current law has it that a warrant based on “probable cause” is required in order to access the content of email and telephone conversation, but that a court order based on “reasonable suspicion” needs to be elicited in order to access the metadata of such communications. While this appears satisfactory when applied to telephone conversations alone, it becomes less than satisfactory in its ability to protect an individual’s “reasonable expectation of privacy” with regards to social networks. While the effect of the consolidation of metadata was not taken into consideration in the ruling of Katz v. United States, technology has since changed. The, law now needs to consider not merely how information on an individual is gained, but also the kind of information obtained. If mining our social networks reveals our location, our beliefs, and our affiliates, then such a practice should be considered unlawful as blatant violation of the Fourth Amendment.
The new documents shed light on another worrying issue—that of data retention. Logging data pertaining to email and phone records can be stored for later inspection. Knowledge of the NSA’s methods of social network mining has the potential change and limit the behavior of individuals as they feel restricted in selecting their affiliates and as paranoia increases about government knowledge of their political and religious views.
While it can be argued that the NSA practices are imperative for issues of national security, changing the law to necessitate a warrant based on probable cause to perform metadata analysis would ensure that American citizens are reasonably protected while simultaneously safeguarding Americans from unreasonably monitoring. Another solution would be to revert to previous practices; before the November 2010 policy change, the NSA was not allowed to mine the metadata of American citizens. This overturned the established notion that analysis could only be performed on the records of foreign nationals.
The NSA’s newly revealed social mapping program, which allows for “contact chaining” is invasive of privacy; the government no longer needs just cause to generate personal information about an American citizen. While the NSA still needs a warrant to access the specific content of such data, it is problematic that the aggregation of metadata has been shown to provide a more holistic portrait of an individual than could be gathered simply from content viewing. As technology changes in such a manner that expands our connection to social networks, it is necessary to reinforce the constitutional protection that grants “reasonable expectation of privacy.”