He had a point.

Photographer: frederick florin/afp/getty images

Government's Privacy Rights Don't Exceed the Public's

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When it comes to metadata, is turnabout fair play? The New Jersey Supreme Court will decide that question in a fiendishly clever case brought by a libertarian who is demanding the e-mail logs of town officials under the state’s Open Public Records Act.

What makes the case so piquant is that, as Edward Snowden’s leaks revealed, the federal government engaged in bulk metadata collection under a questionable interpretation of the Foreign Intelligence Surveillance Act. The authorization relied on for the data collection has since expired, but the legal principle remains. The New Jersey lawsuit in effect asks: if metadata isn’t that private, why not give the public access to the government’s records of who contacted whom, and when?

As if on cue, lawyers representing local New Jersey officials gave an answer that echoes the concerns that privacy advocates have been raising for years about metadata: they said you could figure out so much information from metadata that it would compromise confidentiality. “There is a great deal of concern about citizens finding out who the chiefs of police are communicating with, and with what frequency,” the lawyers told reporters. “A list of all the people a chief of police is communicating with could compromise investigations and reveal the identities of victims of crimes and witnesses while an investigation is unfolding.”

That’s correct, of course -- and it’s also the point of the lawsuit. The case was brought by John Paff, chairman of the Open Government Advocacy Project of the New Jersey Libertarian Party. His position is being supported by the New Jersey American Civil Liberties Union as well as the Electronic Frontier Foundation, an important privacy watchdog.

In 2013, Paff requested a log of e-mails -- sender, recipient, date and subject -- made by the chief of police and town clerk of Galloway Township for a two-week period in June of that year. Paff says he doesn’t remember exactly why he chose that period, but the information-technology specialist in charge of the records testified that the period corresponded to an internal investigation by the police chief.

A local trial court ordered the town to release the records after the IT person testified that he could generate the record in two or three minutes. The judge not only reasoned that the material was covered by the state’s open records law, he also gave short shrift to concerns about compromising the confidentiality of investigations, noting that the request would provide “access to no more than the sender/receiver/date/time of emails” on the dates requested.

 A state appellate court reversed. Its reasoning was highly formalistic. It held that because the public records act only requires disclosure of existing records, and there was no existing metadata list, there was no obligation to disclose it. Given that the e-mails exist and are preserved, and that the metadata can be generated electronically in seconds, the argument was pretty clearly intended to solve the confidentiality problem.

The court admitted that public officials could redact the metadata to avoid disclosing any confidential information. But it said that the redaction process would be too burdensome.

The reality in the information age is that disclosing metadata can give a smart interpreter almost all the information needed to figure out what’s being said. That’s exactly why the National Security Agency was so eager to gather metadata in the first place. Properly analyzed, metadata reveals a network or web of relationships. Frequency and duration of messages deepen the picture. The actual content of what people have to say becomes almost unimportant, because it can be inferred from the circumstances and the information.

For these reasons, the public almost certainly shouldn’t be able to get access to the metadata of police communications. The patterns and networks of police communication would be of tremendous use to enterprising criminals. Redaction might appear to solve the problem of a particular individual’s privacy interests. But that’s not the real problem with mass disclosure of police metadata. The true danger lies in compromising the effectiveness of law enforcement.

In other words, the police have something like the same privacy interests in their communications metadata that you and I should have in ours.

Although the U.S. Court of Appeals for the Second Circuit vindicated Snowden in 2015 by holding that the metadata collection program was unlawful in going beyond statutory authorization, courts have been slow to recognize a fundamental privacy interest in metadata. The New Jersey case gives the state Supreme Court a chance to send the message that metadata deserves to be private.

What would be perverse would be to give government communications greater protection than those we should rightfully enjoy as individuals. The constitutional right to privacy under the Fourth Amendment applies to “the people,” not the government.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net