by Anthony W. Accurso
A just-unsealed government wiretap application from November 2021 shows that DEA agents in Ohio applied to force WhatsApp to provide metadata on seven users, and all the agency had to say was that “the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.”
This low bar for obtaining metadata is due to the aging 1986 Pen Register Act, a law passed when most people used telephones to talk to each other. Back then, users expected telephone companies to track this data, so they could provide accurate billing for things like long distances services.
Court precedent and privacy laws relating to the privacy expectation deemed reasonable for this data assumed that users knew the companies collected metadata—who they called and for how long. But these assumptions are outdated and should not apply to IP addresses and social messaging apps. The DEA wants this information, so it can build profiles of people’s daily habits and social circles—the very kind of information that we expect to keep private and that courts and legislators have recognized as deserving protection.
Users are unlikely to even be aware that the government is seeking this information because they are rarely cognizant of their IP address—which may change frequently, unlike traditional phone numbers—or that social messaging companies track this sort of data. Review is less likely because the warrant application was made to a court in Ohio for the purpose of tracking WhatsApp users allegedly located in China and Macau. Since these individuals are probably not going to show up to an Ohio court to fight this warrant, the DEA can make conclusory statements about the data being relevant to an ongoing investigation—the kind of statements that courts routinely reject during litigation when there is an opposing party to challenge them.
Courts also assume that people are unconcerned with the government getting access to metadata, because otherwise we would push for the reform and updating of wiretap laws through our legislators. Unfortunately, they are correct. Too few people are concerned with their digital privacy for lawmakers to sit up and take notice of the outdated patchwork of laws that are failing to protect privacy in the digital era.
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