Thursday, June 6, 2013

FYI, U.S. Supreme Court: "No actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not 'legitimate.'"

The following U.S. Supreme Court decision was relatively new when I was in law school, and was a topic of discussion in Criminal Law.

In light of the uproar over the news that the FBI is gathering huge databases of phone call logs, it is worth remembering that this is not a new subject.  "Pen registers" have been around for ages, and were used for gathering lists of incoming and outgoing phone calls from our old landlines.

The subject of our expectations of keeping our phone logs private (and away from pen registers) was considered by the U.S. Supreme Court in 1978.  And, in Smith v. Maryland, 440 U.S. 735 (1978), those Justices - some considered "liberal" and some considered "conservative" - found overwhelmingly (6-2, with Justice Powell not taking part) that there is no legitimate expectation of privacy for such information.

The majority opinion was written by Justice Harry Blackmun - the same Justice who wrote the key opinion five years earlier in Roe v. Wade, finding a constitutional right to privacy in other areas - and relies on basic technology of how a dialed phone number has to be transmitted to a phone company which saves the information for legitimate business purposes:

We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not "legitimate." The installation and use of a pen register, [442 U.S. 735, 746]   consequently, was not a "search," and no warrant was required.
There were two strong dissents written by Justices Potter Stewart and Thurgood Marshall (Justice Brennan  concurred  in both), which are being echoed by many today:
Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U.S. 449, 463 (1958); Branzburg v. Hayes, 408 U.S. 665, 695 (1972); id., at 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review. [442 U.S. 735, 752]  
It is a pretty short Supreme Court opinion, and one well worth the time before, during or after engaging in today's debate.

P.S.  The Smith decision came in the same year that FISA was first enacted by Congress.  It is also worth some reviewing the history of that Act.

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