16 December 2013 - Month after month there has been one revelation after another about how the National Security Agency (NSA) collects information from people both inside and outside the US. Now, a judge has finally paid attention to these activities and ruled that the NSA can't simply run willy-nilly over US citizens' privacy rights. Well, kind of.

Conservative legal activist and founder of Judicial Watch Larry Klayman filed a lawsuit against the US government earlier in 2013 alleging that the NSA's massive telepehone surveillance program violates "the reasonable expectation of privacy"

We are still working through the 68 page decision (with 129 footnotes) but this jumped out straight away:

"The question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval .... For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs' favor." 

So Leon believes it's unconstitutional. But even with his strong opinion that the NSA is in the wrong for collecting this data, Leon's preliminary injunction does not require the NSA to stop its data collection. Instead, his preliminary injunction, which specifically deals with the NSA from collecting metadata pertaining to the Verizon accounts of Klayman and one of his clients, Charles Strange, the father of a deceased Navy SEAL, has been stayed. This gives the government a chance to appeal his injunction.

For the full decision click here.

There will be terabytes of analysis tonight/tomorrow but just some short "reminds" from a piece we wrote earlier this year on the tech/metadata issues quoting Wired magazine, a piece in The New Yorker, and DFI's take.  Here, a reduced version:

1. It all started with a court order to Verizon, demanding that it turn over the "telephony metadata" of its customers, makes clear that the N.S.A.'s highly classified program is not collecting data regarding "the substance, purport, or meaning" of phone calls, as defined in 18 USC 2510(8). 

2. Instead, the N.S.A. asked Verizon to provide, for every call originating in the United States, the following information: the originating and terminating telephone numbers; each phones' International Mobile Subscriber Identity and International Mobile Equipment Identity; the trunk identifiers, which show where the call entered the cellular network; the phones' calling-card numbers; and the time and duration of each interaction. The Defense Intelligence Agency, in response to public outcry about the practice, reiterated that the program is not collecting the identity of phone subscribers. But the data the N.S.A. has requested can be incredibly revealing nonetheless.

3. As the New Yorker pointed out "The originating and terminating telephone numbers of each call is powerful information, even when the numbers are separated from the identity of the subscribers. By considering when a call was placed and its duration, an investigator can easily infer a relationship between a pair of numbers; for example, it's highly unlikely that someone would call a stranger for thirty minutes at two in the morning. Moreover, some phone numbers are secret, and their disclosure can often be more revealing than a name. Under the Federal Rules of Evidence, the simple fact that a call was placed between two phone numbers is admissible in court, even when the content of the call is unknown."

4. A cellular network is a "trunked" system: rather than providing a direct radio link between two phones, callers are linked through a series of high-capacity channels, typically existing telephone circuits. The trunk identifier of a cell-phone call can reveal where that call entered the trunk system. This single piece of data can locate a phone within approximately a square kilometer.

5. An ambiguous component of the N.S.A.'s order to Verizon, one that potentially carries the greatest implications, is the government's demand for "comprehensive communications routing information." It is unclear whether "comprehensive" means that the N.S.A. is asking simply for the trunk identifier at the start of the call, or if it includes a request for every trunk identifier used throughout the interaction. This is a consequential distinction: as a phone moves between cellular towers, it switches trunks. A full record of trunk identifiers could allow a phone's movements to be tracked. The speed with which a phone moves from tower to tower could indicate, for instance, whether the device is being used in a car or while walking down the street.

6. A phone's International Mobile Equipment Identity (I.M.E.I) is a unique number, embedded into the phone's hardware, indicating where the phone was manufactured, the manufacturer's make and model code, and the individual phone's serial number. (Technically, Verizon and Sprint, which operate a different kind of network than A.T. & T. and T-Mobile, use a Mobile Equipment Identifier (M.E.I.D.), though it is functionally equivalent.) No cellular hardware has the exact same I.M.E.I. or M.E.I.D. Using these codes, a network provider can identify malfunctioning, obsolete, or stolen equipment, or ban a device from the network.

7. A phone's International Mobile Subscriber Identity (I.M.S.I.) uniquely identifies a user by using their SIM card. An I.M.S.I. consists of a three-digit mobile country code, a two-digit mobile network code (three digits in North America), and a ten-digit subscriber-I.D. number. Combined with the other calling information, it can show, for example, that a 2 A.M. phone call to (907) 555-1920 came from a SIM card purchased in France and assigned to a European cell-phone provider.

8. The N.S.A.'s request for calling-card numbers is fairly straightforward: a calling card can be used to mask the originating number of a phone call. If multiple subscribers rack up huge bills on the same calling-card number, it can be evidence of fraud or identity theft. Wired: "A 2004 fact sheet from the House Ways and Means Committee explains how terrorists use such crimes to fund their operations. Calling cards also link telephones that may never have called each other: there could be a perfectly legitimate reason why a group of telephones in Bratislava all use a single calling card belonging to a dry cleaner in Laplace, Louisiana; but then, maybe there isn't."

9. Once they've been compiled and cross-referenced, these pieces of information can paint a more or less complete picture of a target without ever invoking the target's name or the contents of his phone conversations. The metadata could be used, variously, to determine whether multiple people were together in a particular place; to track the movements of a device; to evoke the breadth and depth of the connections between people; or, combined with other forms of data analysis, to identify the names behind the numbers. (Multiple studies have shown that processes designed to anonymize data frequently do not work.)

Leon emphasized that he was unpersuaded by the government's claims that the program served the public interest, pointedly noting that it failed to cite "a single instance in which analysis of the N.S.A.'s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive."

Next up: the government's appeal! 

Gregory P. Bufithis, Esq.

Eric De Grasse