After the NSA’s loss in the D.C. District court, the NSA has a win in the Southern District of New York. Here at Big Data and the Law we’ve dialed it back for the holidays, so haven’t yet spent much time reviewing the two decisions.
A cursory review does reveal one interesting fact though. In the D.C. District Court opinion, Judge Leon makes frequent mention of not only the data that the NSA collects, but the analysis that the NSA conducts using that data. For example:
The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collect their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets.
In contrast, in Judge Pauley’s opinion in the Southern District of New York case, there is relatively little mention of that analysis.
As we’ve discussed here before, how you can use data to discern other data is a big deal. The courts will need to consider how data is (or can be) used – every bit as much as where it comes from.