My two new words of the week: meta-data (metadata?) and yottabyte.  Since the news this week has been dominated by the NSA's accumulation of data, these words are suddenly everywhere.  Meta-data in this case seems to mean phone numbers called and duration of calls (sounds like data to me) rather than the actual content of the calls.  The NSA has assured us that the 97 trillion records from March, for example, are only meta-data; there's no listening in on the actual calls.  The haystack in which they're trying to find a needle of significance (to use this week's metaphor) is now so huge and requires such enormous new buildings in Utah that the data to be sifted are now described in yottabytes (each one a million billion gigabytes).

Although the story is everywhere on the news, most Americans seem rather indifferent to the obvious intrusion on our privacy.  One response is often, "If it helps prevent a terrorist attack, the program is fine with me."  Another is that few of us have any expectation of privacy on phones or the Net.  Most of us assume that once we're on a network, there's no way to control who has access to what we say or send.  And then this "revelation" isn't exactly new.  As early as 1979, the Supreme Court ruled that the history of our telephone calls belongs not to us, but to the telephone companies.  We had the same revelation and discussion about Internet snooping in 2006.  Libertarian Republicans are outraged, but the mainstream of the GOP supports the program.  Many Democrats who were upset when Bush was in charge of this are less so now that it's Obama.  It seems unlikely that there will be enough serious and sustained objections to significantly modify--to say nothing of ending--the program. 

Generally ignored in the discussion of privacy over the last two weeks was the important Supreme Court decision in Maryland v. King.  By a 5-4 majority, the Court decided that police could do "suspicionless" DNA swabs on anyone stopped for a potential offense.  The majority decision argued that DNA swabs were basically like and no more intrusive than fingerprinting.  That decision was written by Justice Kennedy, joined by three of the other conservatives (minus Scalia) and one of the liberals, Justice Breyer.  The scathing dissent was written by Justice Scalia for himself and three of the four liberals (Ginsburg, Sotomayor, and Kagan).  These are indeed strange bedfellows on both sides.  Although Kennedy and Scalia often vote on the same side, their relationship seems to be the least cordial on the Court.  Kennedy is known for writing flowery, sweeping opinions; Scalia is known for mocking them.  Although dissenting opinions are rarely read aloud when the decision is rendered, Scalia read his in this case, enjoying, it would seem, the chance to enhance his sarcasm, as in his opening remark that the state of Maryland's argument justifying the swabs "taxes the credulity of the credulous."  In the same paragraph he argues that the comparison to fingerprinting seems "apt" only to those who know no more about the procedures that the majority opinion has chosen to tell them.

Relying on his Originalist theory, Scalia compares the taking of DNA swabs for no probable cause or reasonable suspicion to the despised General Warrants used by the British before the Revolution.  The Fourth Amendment specifically prohibited, except in very narrowly defined circumstances, suspicionless searches.  In the case of King, as Scalia points out, he was stopped for one reason, a swab was taken, nearly four months elapsed before the results were matched with a completely unrelated crime from years earlier.  Scalia spends a large part of his dissent enumerating the differences (complete with a chart) between suspicionless DNA swabs and other types of information.

Scalia is also particularly irritated by Kennedy's assertion that swabs will be taken only from those originally stopped for "serious offenses," a term he finds hopelessly vague--"a senseless distinction."  "Make no mistake about it," Scalia writes, "as an entirely predictable consequences of today's decision," your DNA will be taken and entered into a national data base, no matter the nature of the crime or whether the arrest resulted in conviction or not.  True, he writes, we might solve more crimes this way, but "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."

A question and a reminder:  As the Court's term comes to its end and a number of important decisions (including marriage equality) are about to be announced, do some recent votes (Roberts for the Affordable Cart Act, Breyer to the right and Scalia to the left in this case) indicate potential fissures in the prior predictability of the Court?  Probably not, but it's interesting to think about.

Despite the power of the dissenting opinion in Maryland v. King, it's important to remember that it was the dissenting opinion.  According to the majority, whenever one is stopped by the police, a DNA swab is permissible without any charges, any probable cause, any reasonable suspicion.  That may have been the most important and serious violation of our privacy rights while our attention was focused elsewhere.