Page 144 - Privacy in a Cyber Age Policy and Practice

132 PRIVACY IN A CYBER AGE

telephone companies entailed the forfeiture of a reasonable expectation of
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privacy when it came to telephone records. According to the Office of the
Director of National Intelligence General Counsel Robert Litt, “as a result,
the government can get this information without a warrant, consistent with
the Fourth Amendment.” 78
Though the third-party doctrine is the accepted law of the land, it is
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controversial, and thus it will not serve as the basis for the defense that
follows of government surveillance. My main reason for moving away from
the third-party doctrine is that in the cyber age much of our private lives
are lived in a cyber world of cloud computing operated by third parties like
Google and Facebook. As a result, a massive amount of information that
once resided in the private sphere is now in the hands of third parties. If
one accepts the third-party doctrine as the basis for a defense of govern-
ment surveillance, one leaves very little in terms of what is considered
reasonably private information protected from search. 80
In short, we had best determine whether phone surveillance can be
justified on grounds other than the third-party doctrine, because if the third-
party doctrine must be employed, one may well conclude that the privacy
sacrifices this doctrine legitimates are too high a price to pay for whatever
security gains these programs offer. (This may not be the case if one considers
what might be called a “half third-party doctrine,” which excludes sensitive
information such as medical and financial information.)

2. “Traffic” versus Content Analysis

Many critics of the phone records collection program refer to it explicitly
or implicitly as if the government were listening to American phone calls
and hence violating the privacy of millions of people. For example, Glenn
Greenwald claims that “the NSA frequently eavesdrops on Americans’ calls
and reads their emails without any individualized warrants—exactly that
which NSA defenders, including Obama, are trying to make Americans
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believe does not take place.” Similarly, Conor Friedersdorf suggests that
to believe the NSA isn’t listening to our calls requires “trusting that the
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NSA is telling us the truth. But they’ve lied to us repeatedly.” Among the
public, a nearly two-to-one majority (63 percent) of Americans believe that
the government is collecting the content of Americans’ phone calls and
e-mails—and 27 percent state that they believe the government is listening
to their phone calls or reading their e-mails. 83
However, given the massive amount of communications content that
is generated every day, it would be impossible for the NSA to examine
even a small portion of that content unless its employees numbered in the