URL visited, the time a phone call is made or email sent, the identity and location of
senders and recipients of calls and emails, the content of messages posted on social
media sites, etc. This can build an incredibly intimate picture of someone’s life – their
relationships, habits, preferences, political views, medical concerns and the streets
they walk. To give an idea of just how much the communications landscape has
changed, in 2013, statistics revealed that 73% of adults in the UK accessed the
internet every day – that’s 20 million more daily users than in 2006 when these
figures first began to be collected.
We’re also accessing the internet in different
ways, with the number of us accessing the internet on our mobile phones more than
doubling between 2010 and 2013.
13. The intrusive nature of modern communications data has recently been
recognised by a US federal judge in a ruling challenging the NSA’s bulk metadata
collection on US citizens. In Smith v Maryland (1979) the US Supreme Court found
that there was no expectation of privacy for telephone metadata held by companies
as business records. The Court found that such records didn’t fall within the ambit of
the Fourth Amendment and that a warrant was not required to obtain the information.
However on 16 December 2013 US District of Colombia Judge Richard J Leon found
that a lawsuit challenging NSA bulk metadata collection demonstrated a “substantial
likelihood of success”.
He said “When do present-day circumstances — the
evolutions in the government’s surveillance capabilities, citizens’ phone habits, and
the relationship between the NSA and telecom companies — become so thoroughly
unlike those considered by the Supreme Court thirty-four years ago, that a precedent
like Smith does not apply?…The answer, unfortunately for the government, is now.”
Describing the change in circumstances he described modern-day metadata as
“unlike anything that could have been conceived in 1979” and said “I cannot imagine
a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech
collection and retention of personal data on virtually every single citizen for purposes
of querying and analyzing it without prior judicial approval…Surely, such a program
infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth
Since the Office for National Statistics started to collect figures in internet usage in 2006, 20
million more people in the UK have gone online. 36 million people, not counting the many
young people who are regular users, 20 million more than when this data started to be
collected in 2006.
Office for National Statistics, up from 24% in 2010 to 53% in 2013:
http://www.ons.gov.uk/ons/rel/rdit2/internet-access---households-and-individuals/2013/stb-ia-
2013.html.
Klayman v Obama in the United States District Court for the District of Colombia, 16
December 2013, available at: http://apps.washingtonpost.com/g/page/world/federal-judge-
rules-nsa-program-is-likely-unconstitutional/668/.