Here’s How Phone Metadata Can Reveal Your Affairs, Abortions, And Other Secrets - WaPo

[Skinner]

17. What's legally relevant is my reasonable expectation.

I was providing an explanation for why I have a reasonable expectation that the phone company will not share my metadata. I believe they will share my name and address and my phone number, but I do not believe they are going to share a list of whom I call.

You said:

Even if they sometimes say "no". The fact that they can ever say "yes" means it isn't private.

But that does not mean the government can just take it. On at least two occasions, the federal government has contacted me -- the administrator of this website -- and asked me to hand over the IP addresses and email addresses of specific users of this website. In each of those cases, I could have said "yes" and just handed it over. I would have been within my rights to do so. but the fact that I can ever say "yes" -- to the government or to another third party that wants to buy it from me -- does not mean that I am REQUIRED to give this information to the government.

In both cases, I said "no". And guess what the government did next? They went to a court of law and got a subpoena and then came back to me with the subpoena. Once they legally compelled me to do it then I had to hand it over.

Now, I know what you're going to say: You're going to say that the FISA court gave the government the green light to collect everyone's phone call metadata -- just like a court gave the government a subpoena for my members' private information. But that is different from saying that "the fact that the phone company can ever say 'yes' means it isn't private." The phone company can say yes, but that does not mean the government is automatically free to take it.

The reason the government can take it is because the FISA court said so. My contention is that the FISA court was wrong to do so. (And I also think the FISA court itself is poorly conceived, but that's not the point of this post.) Sure, maybe the FISA court used the trash precedent to authorize mass collection of metadata from everyone, but I am not convinced that it is a particularly relevant precedent. There is certainly an argument to be made on phone metadata before SCOTUS. My best guess is that SCOTUS would split 5-4, and I honestly don't know which way Kennedy would go.

Having said all that, I agree that this problem could be solved by Congress, if there was the political will to do so.