In case you missed it earlier today, the Senate Judiciary Committee held a hearing on the Report of the President’s Review Group on Intelligence and Communications Technologies (the PRGICT Report), where the Group members testified regarding their proposed reforms and recommendations for U.S. national security surveillance programs. If you were unable to catch the hearing today, a full video is available on C-SPAN (unfortunately, an embeddable version is not yet available, but we’ll update this post accordingly once one is up). The hearing is an important moment in the ongoing debate over the NSA surveillance programs and provides the important opportunity to hear directly (and publicly) from the five-person Review Group regarding their observations on and recommendations for the nation’s surveillance programs.
In a hearing which had several notable moments–including one where two senators (Durbin and Blumenthal) called for Smith v. Maryland to be revisited and another where Senator Sessions suggested Professor Stone had a conflict of interest that may have kept him from being impartial–an exchange between Senator Leahy and Review Group member Michael Morell (former Deputy Director of the CIA) stood out most in my mind. In the C-SPAN video at around the 20:50 mark, Senator Leahy asks Morell whether Americans should be concerned about Section 215, given that only metadata is collected under the program. Here was Morell’s response:
“I’ll say one of the things that I learned in this process, that I came to realize in this process, Mr. Chairman, is that there is quite a bit of content in metadata. When you have the records of phone calls that a particular individual made, you can learn an awful lot about that person. And that’s one of the things that struck me. There is not, in my mind, a sharp distinction between metadata and content. It’s more of a continuum.”
Morell’s response that there is “quite a bit of content in metadata” and that there is no sharp distinction between metadata is striking to me for two reasons. First, this is quite a contrast to the government’s stated position that Section 215 does not collect any content of communications and that telephony metadata is clear and distinct from and not a part of “content.” To my knowledge (and if there have been others, please do let me know), Morell’s is the first statement by a member of the intelligence community to question the distinction between metadata and content as advanced by the government in its defense of Section 215. Just as interesting, though, is that Morell’s views reflect an understanding of metadata that more closely resembles Judge Leon’s in his opinion last month finding Section 215 likely unconstitutional, noting that “[metadata] that once would have revealed a few scattered tiles of information about a person now reveal . . . a vibrant and constantly updating picture of the person’s life” (e.g., pgs. 53-54). It is also a statement that seems to favor the mosaic theory of United States v. Maynard and Justice Sotomayor’s concurrence in United States v. Jones rather than the traditional third-party doctrine of Smith v. Maryland. I certainly don’t mean to suggest that Morell is necessarily advocating for an acceptance of the mosaic theory, but I do find it interesting that his understanding of metadata would support arguments embraced by those who have adopted this approach in 4th Amendment jurisprudence.
For any who did miss our coverage today, Just Security live-tweeted the hearing. You can find our play-by-play commentary on the hearing at our Twitter account (@just_security).