US Surveillance Law May Poorly Protect New Text Message Services
Internet-based text message apps are one of the most common means of communicating today. But when it comes to this relatively new technology, surveillance law is behind the times in important ways, and as is so often the case when the law lags technology, our privacy suffers as a result.
Text messages have for some time been a cash cow for the wireless carriers—back in 2007, annual global SMS revenue was estimated to be 60 billion dollars. Charging consumers 25 cents per 140 character text message is a great way to make money, but when those same consumers are already paying for internet connectivity to their smartphones, the market was ripe for disruption. In recent years, a number of internet companies have entered the text message market. In some cases, they have offered low-cost or free SMS services that interoperate with the carriers’ existing SMS system. In other cases, large companies like Facebook, Apple and WhatsApp have offered closed text message services to their smartphone using customers. Often seeking to reduce their monthly telephone bills, millions of consumers have migrated from smartphone text message services provided by the wireless carriers to smartphone text message services provided by internet companies.
As this massive switch takes place, there are significant questions about the process that the government is following in order to compel these internet companies to disclose records about their customers’ text message conversations. The reason these questions exist is that US law has different standards for the surveillance of telephone and internet records.
Two separate standards under existing surveillance law
US surveillance law provides different levels of legal protection to different types of data. Communications content, the “what” you say, generally receives a greater deal of protection than associated “metadata” records, which is the “who” you say it to (as well as the when and where you say it). Although there are many things to dislike about our out-of-date surveillance laws, there is something to be said for the fact that the law is largely neutral with respect to particular technologies.