When it comes to metadata, is turnabout fair play? The New Jersey Supreme Court will decide that question in a fiendishly clever case brought by a libertarian who is demanding the email logs of town officials under the state's Open Public Records Act.
What makes the case so piquant is that, as Edward Snowden's leaks revealed, the government engaged in bulk metadata collection under a questionable interpretation of the Foreign Intelligence Surveillance Act. The authorization relied on for the data collection has since expired, but the legal principle remains. The New Jersey lawsuit in effect asks: If metadata isn't that private, why not give the public access to the government's records of who contacted whom, and when?
As if on cue, lawyers representing local New Jersey officials gave an answer that echoes the concerns that privacy advocates have been raising for years about metadata: They said you could figure out so much information from metadata that it would compromise confidentiality. "There is a great deal of concern about citizens finding out who the chiefs of police are communicating with, and with what frequency," the lawyers told reporters. "A list of all the people a chief of police is communicating with could compromise investigations and reveal the identities of victims of crimes and witnesses while an investigation is unfolding."
That's correct, of course – and it's also the point of the lawsuit. The case was brought by John Paff, chairman of the Open Government Advocacy Project of the New Jersey Libertarian Party. His position is being supported by the New Jersey American Civil Liberties Union, as well as the Electronic Frontier Foundation, an important privacy watchdog.
In 2013, Paff requested a log of emails – sender, recipient, date and subject – made by the chief of police and town clerk of Galloway Township for a two-week period in June of that year.
A local trial court ordered the town to release the records after the IT person testified that he could generate the record in two or three minutes. The judge not only reasoned that the material was covered by the state's open records law, he also gave short shrift to concerns about compromising the confidentiality of investigations, noting that the request would provide "access to no more than the sender/receiver/date/time of emails" on the dates requested.
A state appellate court reversed. Its reasoning was highly formalistic. The court admitted that public officials could redact the metadata to avoid disclosing any confidential information. But it said that the redaction process would be too burdensome.
The public almost certainly shouldn't be able to get access to the metadata of police communications. The patterns and networks of police communication would be of tremendous use to enterprising criminals.
Although the U.S. Court of Appeals for the Second Circuit vindicated Snowden in 2015 by holding that the metadata-collection program was unlawful in going beyond statutory authorization, courts have been slow to recognize a fundamental privacy interest in metadata. The New Jersey case gives the state Supreme Court a chance to send the message that metadata deserves to be private. •
Noah Feldman is a Bloomberg View columnist.
