From: jimbell@pacifier.com (Jim Bell)
Date: Tue, 13 May 1997 01:32:19 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: Money orders, debit cards, ...
Message-ID: <199705112138.OAA21281@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 03:11 5/11/97 -0700, Greg Broiles wrote:
>At 02:12 AM 5/11/97 -0700, David Wagner wrote:
>>(Note: contents of calls are protected by law, but traffic analysis
>>specifically is allowed, far as I can tell.)
>
>Correct. There is no (federal) constitutionally protected privacy interest in
>traffic-analysis data about phone calls, because (so the argument goes) that
>data is voluntarily disclosed to a third party (the phone company).

That argument is bullshit, however.  Getting technical about it, you
"disclose" your voice to the phone company so that it can digitize it and
send it to its destination.  If that argument were valid, voice would be
unprotected as well.

Chances are excellent that this odd position is a holdover from a time
(1920's) when many if not most telephone calls were manually switched, and
you had to tell the (human) operator the number you wanted to call.  That
act of telling was probably considered "disclosure."   However, logically
the adoption of a system of automatic switching (which doesn't require
recording the number called; for many decades such recording wasn't even
done because it was economically impractical except for charged LD) would
eliminate the presumption that the number was already "disclosed."

Since phone company operations subsequent to call takedown do not require
the recording of destination numbers, any more than they need to record
voice, the constitutional treatment of these two pieces of information
should be identical.

In any case, constitutional rights should not depend on (or be limited by)
the state of technology 70 years ago.


Jim Bell
jimbell@pacifier.com