phone number, or URL is instead part of the substantive
information conveyed to the recipient, then by definition it is
“content.”
The different ways that an address can be used means,
as Professor Orin Kerr puts it, that “the line between contents
and metadata is not abstract but contextual with respect to
each communication.”38 Thus, there is no general answer to
the question of whether locational information is content.
Rather, a “content” inquiry is a case-specific one turning on
the role the location identifier played in the “intercepted”
communication.
Here, the complaint does not make clear whether the
tracked URLs were acquired by the defendants from
communications in which those URLs played a routing
function. This is not, however, fatal to the plaintiffs’ claim.
In a declassified opinion analyzing whether there was
statutory authority for a National Security Agency
surveillance program, the Foreign Intelligence Surveillance
Court observed that the government possessed trap and trace
authority over “dialing, routing, addressing, and signaling
information . . . provided, however, that such information
shall not include the contents of any information.”39 The
38
Kerr, Websurfing and the Wiretap Act.
39
[Redacted], No. PR/TT [Redacted] (FISA Ct. 2010),
available at
http://www.dni.gov/files/documents/1118/CLEANEDPRTT%2
02.pdf at 26 (quoting 18 U.S.C. § 3127(4)).
21