Rich, your post tempted me to name this post “How to Stoke a Phony Scandal.” Plainly, the Times in particular is frustrated over the fact that the public is simply not up in arms over the unremarkable fact that we are trying to penetrate the enemy’s communications in wartime. So the next move is to try to convince people that the “spying” is far more widespread than they’ve been led to believe.

The sleight-of-hand used to inflate the NSA program is to subtly shift from emphasis on interception of phone calls to, as the Times puts it, the “volume of information harvested from telecommunication data and voice networks.” This, we are breathlessly told, is being done “without court-approved warrants” and in an amount “much larger than the White House has acknowledged.”

There’s only one problem. As a matter of law, all telephone/email information is not constitutionally or statutorily equal. The interception of content (what you say to me and I say to you in a call or an email) requires court approval based on probable cause in most (but, importantly, not all) instances. But other telecommunication data — e.g., the fact that my phone number called your phone number at such-and-such at time on such-and-such a date, and that we spoke for seven minutes — does not. The latter category of information does not implicate the Fourth Amendment at all because no one has a reasonable expectation of privacy with respect to it.

There’s nothing new about this. Here’s how the Supreme Court analyzed the matter nearly three decades ago in Smith v. Maryland (1979):

[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.” … Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” … Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” … Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls…. Most phone books tell subscribers, on a page entitled “Consumer Information,” that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” … Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

It is disingenuous to suggest, as the Times does, that court-approved warrants are required for the collection of such information. They are not. The government typically gets pen register orders or subpoenas data maintained by the telephone company. But such process is pro-forma, it does not require any evidentiary showing (much less probable cause, the court-warrant standard), the Constitution does not require even that such process be used, and there is nothing inappropriate about taking the information if it is volunteered by the phone company.

It is also preposterous to use the collection and analysis of this information to pump up the numbers and suggest to the public that Big Brother is listening in on more of their conversations than POTUS has been letting on. Looking at data about the calls is much different from monitoring the calls themselves. For our own protection, we should all hope the government is collecting as much of this data as possible (since it affects no one’s legitimate privacy interests), and comparing it to other known information about al Qaeda to develop leads. That’s how a country manages to go four years without a domestic terror attack that kills 3000 innocent people … or more.