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Is the Government Lying About How Much of Your Metadata It's Using?

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On Sunday, former NSA Chief Michael Hayden repeated what has become a familiar Obama administration talking point: While the government may make a record of every single call every American makes, its analysts actually use almost none of that data.

"You've got this metadata," Hayden said, arguing for a further expansion of government surveillance powers in the event of a future terrorist attack. "It's now queried under very, very narrow circumstances."

The claim also appears in a July 18 letter from the Department of Justice to a federal judge: "only a very small fraction of the records acquired under this program is ever reviewed by intelligence analysts."

But just how does the government define a "small fraction"? The answer to that question remains among the most closely guarded secrets behind the shroud that still covers the NSA telephone metadata collection program revealed by Edward Snowden. In the wake of the revelation that the Director of National Intelligence James Clapper lied to Congress about that program, not everyone is prepared to take the government's word at face value -- and in a number of cases, privacy rights groups are testing the administration's assertions in court.

"I think there's no doubt that the government is doing some scanning of the phone records that includes all of them," says Cindy Cohn, legal director for the Electronic Frontier Foundation, which has been in litigation against the NSA's dragnet surveillance since 2008 and which is party to a recently-filed suit against the NSA. "No one seriously thinks that they are just piling up phone records in a computer somewhere and not doing any sort of searches at all on them until some later date."

Cohn believes that administration officials are "playing another word game" by making a semantic distinction between reviews of metadata undertaken by human beings, which are conducted on the limited basis that the administration describes, and digital scans of phone records, which could be more broadly exercised, that is arbitrary from the point of view of privacy.

"It seems they are using the term 'review' and 'used or reviewed in a query' but we don't know what that means," Cohn says. "I suspect by 'review' they mean some sort of human review ... (but) no one seriously thinks that a computer search -- which can result in your prosecution or being subject to further review -- isn't just as violative of your privacy as a human search. In some ways it's worse since computers can work much more efficiently and quickly -- resulting in multiple 'reviews' of your phone records in an instant."

Jameel Jaffer, Deputy Legal Director for the American Civil Liberties Union, shares Cohn's suspicions about the true breadth of the NSA's queries, as well as her dismissal of the constitutional significance of the cute distinction between human and non-human reviews that Cohn presumes the government is making.

"Just think about the implications of it," he says. "If it were only the human analysis of information (and not the government's collection of it) that triggered the Constitution, why couldn't the government collect the content of all of our phone calls and emails on the theory that no human was examining it (for now)?"

The question of whether most phone records are merely warehoused or whether they are swept up in broad computer searches has serious implications for a raft of new lawsuits challenging the metadata collection program's constitutionality. As the Justice Department's July 18 letter suggests, the administration appears to be staking out the position that the suits against it lack legal standing to be heard in court because the plaintiffs cannot show that the surveillance programs subjected them to "irreparable harm" that is "actual and imminent," which they would need to demonstrate to persuade the courts that they have standing to bring each case.

Under the Constitution, in order to show that one has "standing" to bring suit, a plaintiff needs to demonstrate that a law or policy has caused "actual and imminent" harm to himself, herself or themselves personally, not in the abstract. For instance, in order to contest a policy of racial profiling, it is not enough to argue that the policy is unfair to a group of people or detrimental to society generally; a plaintiff must show that his or her interests were specifically injured by the practice.

Under the government's legal theory, the ACLU, which is the plaintiff in question in the July 18 letter, suffers no "actual and imminent" harm when its phone records are collected and stored in the NSA's databanks. The case for harm, the government contends, only arises when those records are actively reviewed by an NSA analyst. Since only a "very small fraction" of records is ever subject to review, the argument goes, "it is no more than speculation that their metadata have been or ever will be among the very small percentage of the records in the database that are ever reviewed." Such speculation falls far short of the standard for demonstrating actual and imminent harm, so the lawsuit must be dropped.

If the courts accept the government's argument, then those who seek to challenge the surveillance programs will be caught in a nearly impossible conundrum: to establish standing to sue, they will need to show that their metadata was swept up in an NSA query, a task that requires access to state secrets. Unless the government were to take the unlikely step of granting the opposing counsel the necessary security clearances to acquire this evidence, the standard for achieving standing would be virtually impossible to meet.

The one scenario that the government has pointed to that would provide a party with standing is if that party is subject to a criminal prosecution based on evidence derived from NSA surveillance. In that case, the government has grudgingly conceded, the provenance of that evidence would need to be disclosed to the court and to the defense counsel if it were to be used in the prosecution's case, thereby giving the defendant standing to file suit.

Even this scenario, however, puts control of the process largely in the government's hands, as federal prosecutors are able to decide whether to press charges and whether to use the NSA-derived evidence, weighing the benefits of doing so against the risk of inviting a challenge to the surveillance programs.

As Reuters recently reported, in at least some cases the Drug Enforcement Administration is using the NSA's data to start investigations -- and then building a "parallel construction" of non-NSA evidence to present in court. If federal prosecutors can avoid using NSA-derived evidence in criminal prosecutions, and if their argument on standing is upheld by the courts, then the government can indefinitely forestall any possibility of a plaintiff meeting the "actual and imminent harm" standard. And if the standard for achieving standing is unattainable, then the surveillance programs are effectively immunized from Constitutional challenge.

If most of the collected phone records, on the other hand, are routinely subjected to digital review -- as Cohn believes -- then by the government's own standards, standing for the pending lawsuits is within reach.

Even barring such a revelation, the government's argument may be a weak one.

"It doesn't strike me as a persuasive argument against standing," says Steve Vladeck, a law professor at American University.

Both Cohn and Jaffer, meanwhile, say the government's argument that collecting every American's phone records doesn't cause any harm fails the test of simple common sense.

"Your rights are violated," Cohn says, "when the government gets access to your phone records -- regardless of what they do with them afterwards."

Leighton Woodhouse is a freelance journalist and co-founder of Dog Park Media, a creative firm that specializes in documentary film production.