Seeing through the PRISM: N.S.A., Metadata and Circumstantial Evidence
Trilaterization sounds like a term some screenwriter invented to explain how the government can find you at any moment. It has a ring to it, and just enough Latin roots to sound as if Science herself bore the term forth from her bosom. Hear the word in action.
Engineer 1: You see here, Captain [points to screen], by virtue of our program’s trilaterization, we can watch Mr. X without ever needing to watch him. Our system will be aware of him at all times.
Captain: Very good. Carry on.
Instead, screenwriters will borrow the word, a real and actual technological term, and have Jeremy Renner in the Bourne Identity Crisis bandy it about like it’s a cat’s toy mouse.
In a Sunday article in the New York Times, trilaterization was described as technology “that allows tracking of an individual’s location, moment to moment.”
“The data, obtained from cellphone towers,” the article continued, “can track the altitude of a person, down to the specific floor in a building. There is even software that exploits the cellphone data seeking to predict a person’s most likely route.”
While the National Security Agency cannot listen to conversations without certain legal permissions, the agency is still capable of painting accurate caricatures of behavior using cell phone metadata, which can tell who is calling or emailing and from where.
Last week’s reports about the National Security Agency’s PRISM program, which is the government’s internal computer system that manages foreign internet usage information, has caused widespread concern and stirred up a demand to see more public debate about the issue.
Director of National Intelligence James Clapper said PRISM is in compliance with the Foreign Intelligence Surveillance Act passed by Congress in 2008. Clapper maintains that PRISM is not a data mining program.
Interestingly enough, the government uses a cruder version of trilaterization currently. Say, for example, a robbery occurs. Governments can request cell tower data from “cell dumps” to argue that a party called a number belonging to someone associated with the incident. Not only that, but the data the government receives can tell at what time and from where a call was placed, allowing the government to implicate that party in a conspiracy to commit said robbery.
This is powerful evidence, but is it as circumstantial as fingerprints left at a crime scene? Hardly. Who knows what the two parties could’ve spoken about. The content of conversations is still protected by law, but metadata could provide material that can tell a partial story.
The question is whether the partial story pieced together from metadata ought to be used as admissible evidence to charge defendants with crimes. In our hypothetical conspiracy to commit robbery scenario, what the two people talked about is paramount to proving that the accused in fact conspired to further the act of robbery. The conversation might have been about what they’d eaten for lunch, or what they would do that weekend.
One would think the metadata from these communications were protected by the Fourth Amendment and that it would be necessary to obtain a warrant before acquiring such information. However, a loophole exists that allows governments access to this information: when users agree to the terms of a cell phone or email service, they also agree to having their metadata stored online by third-party internet service providers, which is interpreted as a relinquishment of Fourth Amendment protection.
By acknowledging that a third party will store one’s metadata, one effectively acknowledges that said metadata can be subpoenaed, which is an action supported by the Stored Communications Act (18 U.S.C. Chapter 121 §§ 2701–2712).
This means government investigation authorities can see vast amounts of information deposited in cell dumps, potentially from hundreds of innocent people. In fact, such an instance has already occurred.
One hundred and seventy-nine people’s cell phone records were provided to the U.S. District Court for the District of Connecticut during an investigation for a trial that ended in 2012. Attorneys for Luis Soto, charged with a string of bank robberies, filed a motion to suppress evidence, arguing that a warrant should have been required to obtain such information. The judge ruled a warrant was unnecessary, likely after having cited the SCA.
Currently, the government is winning the Big Data battle. Charges can be dished out and conspirators named easily by virtue of accessing stored metadata. This will likely become easier when the N.S.A. opens a one-million-square-foot facility in Utah said to house nothing but personal data information.
Until an overhaul in metadata permissions surfaces, if such an overhaul surfaces, remember that some judges do throw out circumstantial evidence of this nature. For example, in 2011 in the U.S. District Court for the Southern District of Texas, a magistrate judge questioned the authority of a phone records request and the government withdrew the application. Whether other judges will reach similar rulings remains to be seen, but with circumspect judges and public outcry reaching the volume it recently has, hope remains for convicted defendants in the appeals process.