The Ninth Circuit recently heard oral arguments in related appeals challenging the constitutionality of two National Security Letter statutes that permit the FBI, without prior judicial authorization, to demand customer records from internet and telecommunications providers that include all non-content data connected with phone calls, text messages, and emails—essentially, everything except for actual recordings and copies of the contents of the messages themselves.
In April 2014, Juelsgaard Intellectual Property and Innovation Clinic students Michael Chen (JD ’14), Emily Warren (JD ’15), and Rachel Yu (JD ’14) prepared and submitted an amicus brief to the Ninth Circuit on behalf of 20 of the nation’s leading experts in computer and data science. The amici specialize in data and computer security, data analysis, cryptography, and privacy-enhancing technologies. Michael, Em and Rachel conducted extensive research and worked closely with experts to develop and articulate a compelling picture of how so-called “metadata” information about a communication can be extremely revealing even though it does not include the communication’s actual content.
The Clinic’s brief emphasized for the Court the extraordinary sensitivity of the “non-content” data that can be gathered and the private information that can be revealed by such data, including extensive information about a person’s political contributions, intimate relationships, religious and community affiliations, medical conditions, financial records, and much more. The brief also provided the expert clients’ explanations of how the rise of “Big Data” and sophisticated analytical tools only compound this danger, giving the government unprecedented access to the sensitive information of American citizens. ◊