AP phone records seizure reveals telecom’s risks for journalists

[Commentary] That Associated Press phone records could be obtained by the Department of Justice without the AP’s awareness underscores a key feature of how the law views information related to telephone and other networked communications that can be a dangerous vulnerability for news organizations and independent journalists.

While many of us may think of telephone calls as broadly “private,” these and other common communications are inevitably conducted over third-party networks, generating two legally distinct types of data: the “metadata” about the call and the “content” of the call. While the latter is protected under the general “right to privacy” of the Fourth Amendment, the former is not. This so-called “metadata” is considered the property of the network owner, and can therefore be subpoenaed directly from and disclosed by the provider without violating any constitutional protections. “Under federal law there’s a whole category of metadata called subscriber information that the police can get with a subpoena,” says Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation who specializes on issues relating to criminal law, privacy and free speech. That metadata can include the name, address, payment method (including credit card number, if applicable), length of service, numbers dialed and call durations related a given account.