Those defending bulk domestic surveillance have dismissively referred to the take as "just metadata." To many people, this likely seems acceptable. It's nothing but call records... or so it often seems. But "just metadata" is actually surveillance state slang for almost anything that can be obtained without a warrant or subpoena -- which includes anything the government considers to be a "third party record," like financial transactions and historical cell site location data.
"Just metadata" is actually a dangerous thing when left in the hands of intelligence agencies. It's what turned State Department advisor Robin Raphel's diplomatic work with Pakistani officials into a severely misguided -- and severely intrusive -- espionage investigation. A series of blundering investigations into people who had done nothing wrong resulted in the DOJ changing its investigative guidelines, but not before Raphel's house was raided (twice) by the FBI and her reputation severely damaged.
In the end, the government had nothing left of its espionage investigation but a single allegation that Raphel kept classified documents at her home. (Not that she shared them with anyone, unlike General Petraeus, who suffered a mild wrist slap and was temporarily considered for a Trump cabinet position.) In the beginning, though, it was all "just metadata."
In February 2013, according to law-enforcement officials, the FBI received information that made its agents think Raphel might be a Pakistani mole.
The tip came in the form of intercepted communications that suggested Raphel had shared sensitive inside information without authorization. Two officials said this included information collected on wiretaps of Pakistani officials in the U.S.
Investigators began what they call “circling the target,” which means examining the parts of Raphel’s life they could explore without subpoenas or warrants.
One of the first things they looked at was her “metadata”—the electronic traces of who she called or emailed, and also when and for how long. Her metadata showed she was in frequent contact with a host of Pakistan officials that didn’t seem to match what the FBI believed was her rank and role.
The reason Raphel worked outside of her "rank and role" was because staying within the system meant dealing only with Pakistani officials who would be unable or unwilling to part with useful information. Raphel had plenty of experience in dealing with Pakistan's often-volatile relationship with the US -- something that had been strained even further by President George W. Bush's anti-nuke sanctions and President Obama's increasing reliance on drone strikes, including one that mistakenly killed 24 Pakistani troops, rather than the target the US was seeking.
Raphel may have operated outside of her "rank and role," but she was still aligned with the US's goals, rather than pursuing her own agenda. Apparently, nearly four decades of service to the US government meant nothing. Spurred on by the Snowden leaks, the FBI had a renewed interest in hunting down potential "threats." This is what moved the investigation from mere metadata to something far more intrusive.
After months of circling the target, FBI supervisors decided it was time to delve deeper. To monitor Raphel’s private conversations with Lodhi and other contacts on Skype, the FBI obtained a warrant from the Foreign Intelligence Surveillance Court—a decision approved at the highest levels of the FBI and the Justice Department.
The FBI used these communications to build a case against Raphel. It still had nothing that showed criminal intent or actually anything resembling wrongdoing. But it did -- with its limited experience in dealing with diplomatic targets -- feel something wasn't quite right. It had lots of "smoke" but no "smoking gun," according to a former FBI official. It dumped a bunch of "smoke" into an affidavit and secured a "sneak and peek" warrant for Raphel's home. After an extensive search, it managed to locate a 20-year-old file related to Raphel's "Diplomatic Security" investigation. Something of little consequence to anyone -- especially this far removed from its originating date -- was used to justify the FBI's more intrusive search later, one that resulted in Raphel's electronic devices and computers being seized.
The search also led to perhaps the most incongruous question Raphel had ever been asked.
Two FBI agents approached her, their faces stony. “Do you know any foreigners?” they asked.
Raphel’s jaw dropped. She had served as a diplomat in six capitals on four continents. She had been an ambassador, and the State Department’s assistant secretary for South Asian affairs. Knowing foreigners had been her job.
“Of course,” she responded, “Tons…Hundreds.”
This was followed by more FBI activity that bore the unmistakable imprint of recently-installed director James Comey. The FBI routed its inquiries with the State Department to someone who wouldn't talk to anyone else about its actions. It forbade the State Department from informing Raphel's coworkers why she wouldn't be returning to work while simultaneously leaking news of the investigation to the New York Times.
The FBI finally began talking to other State Department officials and employees, most of whom felt they had to explain how diplomacy actually worked. They didn't like what they saw in the FBI's "mole-hunting" effort.
At times, Raphel’s colleagues pushed back—warning the FBI that their investigation risked “criminalizing diplomacy,” according to a former official who was briefed on the interviews.
The interviews undercut the FBI's narrative, but it did nothing to slow the agency's roll towards an indictment. The DOJ, however, seemed less sure of the merits of a prosecution. But it also did little to head the FBI off. Meanwhile, Raphel not only lost her career but also her life savings.
Raphel heard nothing for months from the FBI. She had already spent about $100,000 on legal fees, which she paid by tapping into her savings, but the bills were piling up. Jones set up a legal-defense fund and 103 of Raphel’s friends and colleagues, mostly from the State Department, donated nearly $122,000.
The 20-year-old document on which the prosecution hinged could very well have been declassified while the government pursued a conviction, leaving it with nothing but thousands of taxpayer dollars spent and the embarrassment of being unable to determine the difference between diplomatic activity in volatile outposts from actual espionage.
The charges were finally dropped in March of this year. To date, Raphel's security clearance is still revoked and her career as a diplomat is effectively over. This is what "just metadata" -- along with a newfound enthusiasm for hunting down "insider threats" -- can do to a person who spent nearly 40 years serving their country.