Ben makes the point that the international legal regime that purportedly regulates metadata collection is, at best, highly nascent. Two additional data points strengthen his argument.
First, back in July 2013, in the wake of the revelations about NSA surveillance of Chancellor Merkel’s cell phone, Germany publicly expressed interest in amending the International Covenant on Civil and Political Rights, or concluding a protocol to that treaty. Germany’s goal was to clarify that the right to privacy contained in the ICCPR extends to electronic privacy. The Germany Justice Ministry reportedly went so far as to draw up treaty language that would regulate intelligence agencies’ access to electronic data. The fact that Germany thought---as recently as July---that the ICCPR does not obviously regulate electronic surveillance (whether or not collected in bulk) suggests that the law is at least quite unclear in this area.
Ben also raises a question about European practice in the metadata area. As he gently puts it, “The EU Parliament resolution may say a great deal about what conduct European states think the US should refrain from out of sense of legal obligation, but it doesn’t say much about what conduct the intelligence services of the EU’s own states refrain from out of a sense of legal obligation.” Christopher Wolf, who testified at last week’s PCLOB hearing, produced written testimony detailing some of the intelligence laws and practices of European states. He notes, for instance, that France is able to engage in mass surveillance “for defense of national interests.” And the Snowden leaks reveal both that the UK’s GCHQ has engaged in metadata collection, and that the UK is willing to defend that surveillance publicly as lawful. Indeed, the European Parliament's resolution itself recognizes the existence of mass surveillance by some European states and acknowledges that certain states have defended those programs. Rather than refraining from metadata collection out of a sense of legal obligation, then, at least some European states are engaged today in just that type of collection and believe that it is lawful to do so.