xPost from BOG: Transcript of the NSA Surveillance Portion of my 6/9-10/13 show

[Benton D Struckcheon]

46. The legal underpinnings aren't rock solid, and will be subject to challenge

There was a dissenting opinion written in the case that underlies the justification for metadata not being protected by the Fourth Amendment, written by Justices Stewart and Brennan. Their logic here:

The numbers dialed from a private telephone -- although certainly more prosaic than the conversation itself -- are not without "content." Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person's life.
I respectfully dissent.

Those of us who think vacuuming up metadata wholesale is not a good thing are basing it on that logic: that it would "reveal the most intimate details of a person's life."
Further, there is a second technologically related problem here.
At the time of this ruling, which was Smith v Maryland, the only thing the pen register which was the point of controversy in that case could do was record the phone numbers that had been dialed from Smith's home phone. As noted in the decision, the pen register couldn't tell the police anything about the call: whether it had been completed, and if so, how long it had been, for instance.
The metadata being collected presently by the NSA has that data. Call records obtained using present technology would be able to tell if a call was completed and if completed how long it went on for.
I am firmly of the belief this practice needs to be brought before the court again, as is presently being done by the ACLU, so that it can be re-argued in the light of present-day technology. I think the results would be different. That dissent brought up a legitimate concern, and the technology now present brings up the question of sheer scale: a pen register was very limited in the scale and scope of what it could capture. The scope of present day technology is much larger, and the scale of the data is certainly also much larger. It's like the difference between a wooden bridge over a creek and a suspension bridge over a bay or major river.