What Is Private, What Is Not
The national security of the United States justifies the collection of “metadata.”


Andrew C. McCarthy

Seemed reasonable to me. “I want the names, addresses, and telephone numbers of every person in the five boroughs.” I barked the instruction to one of the eager young interns whose job was not to wonder aloud why cranky federal prosecutors made such demands but to produce the goods, pronto.

He was new, but not so new that it didn’t seem like a bizarre directive. He wouldn’t say so, but his eyes were pleading, “Is everyone a suspect?”

“Never mind,” said I as he started to scurry out the door. “I’ll do it myself.” With that I reached across the desk to the windowsill that served as a bookshelf in my disheveled office. One at a time, they thudded onto my desk — Ma Bell’s huge telephone directories for the Bronx, Manhattan, Brooklyn, and Queens, plus the thinner Staten Island volume.

Pranks like that aren’t unusual in a busy U.S. attorney’s office. There is an inordinate amount of tension, as there should be, at the crossroads between the awesome power to compel information and the solemn duty to respect the Constitution’s barriers, to remember that a public prosecutor is supposed to be a public servant, not master. The pranks break the tension while reminding those who trade in the business of evidence that there are various grades of information. What sounds very personal is often not very private, and that’s a lot truer today than it was 20 years ago, back when I was teasing the help, just as I’d been teased by my seniors.

It never occurred to me back then to wonder whether or why it was kosher for a prosecutor to have a phone book at the ready — or, my personal favorite, the Cole’s Directory, a criss-cross that helped you find street addresses by phone number and vice versa. They were the most dog-eared books in the place, undoubtedly thumbed far more often than the federal reports or any other jurisprudential compendium.

After this week, though, these are questions worth pondering. As we’ve discussed at great length on the Corner and elsewhere at National Review Online (see, e.g., here, here and here), there is shrieking in the land over revelations that, for the better part of a decade, the federal National Security Agency (NSA) has been gathering and storing “metadata” on American citizens. That is, in connection with untold millions of phone calls, both international and — jarringly to many — domestic (yes, American-to-American), the government is compiling the phone numbers involved, the duration of the calls, and the like. This is often called “envelope information,” an analogy that contrasts the dry and presumably innocuous details about conversations with the content of conversations — what is inside the envelope.

The analogy is useful because what is inside the envelope is protected by the Fourth Amendment. Under Supreme Court precedents, there is an “objectively reasonable” expectation of privacy about the content of our conversations — one that society and our law protect from government intrusion absent probable cause that it will contain proof of a crime. The metadata, to the contrary, is unprotected — just like the addresses on the outside of the envelope that everyone gets to see, or like the pages of the phone books in my old office.

In one of those fortuitous coincidences that seem to happen around this time of year, the latest controversy over surveillance by the NSA (an agency that was similarly embroiled in the Bush years) erupts just as the Supreme Court decides a case shedding light on the subject. The justices ruled, 5–4, that state law enforcement may, without a warrant, swab for DNA from arrested suspects. The case is notable not just for the sharply divided result but also for the unusual array of justices on each side. Writing a withering dissent, joined by three of the Court’s staunchest lefties, was none other than Justice Antonin Scalia, among its most reliable conservatives.

Justice Scalia’s principal contention — one the majority did not really answer — was that the ruling was built on a fiction. The majority claimed that warrantless DNA collection was permissible, just like warrantless fingerprint collection, for purposes of identifying the arrestee — something that is obviously necessary to do in order to ensure that police know whom they have in custody and can set bail with an accurate knowledge of the arrestee’s prior criminal history. But Scalia powerfully demonstrates that a defendant’s prior identity is conclusively established long before the DNA testing is done (and, by the way, that the majority’s assumption that warrantless fingerprinting passes constitutional muster is, to say the least, debatable).