While policies may vary, the sensitive nature of the data produced does not. Traffic data analysis generates more sensitive profiles of an individual’s actions and intentions, arguably more so than communica- tions content. In a communication with another individual, we say what we choose to share; in a transaction with another device, for example, search engines and cell stations, we are disclosing our actions, movements, and intentions. Technology- neutral policies continue to regard this transactional data as POTS traffic data, and accordingly apply inadequate protections.

This is not faithful to the spirit of updating laws for new technology. We need to acknowledge that changing technological environments transform the policy itself. New policies need to reflect the totality of the new environment.

* Alberto Escudero-Pascual and Ian Hosein, “Questioning Lawful Access to Traffic Data”