soldier with rifle american civil warState Of The Union


Why Should The Government's Vacuuming
Of "Metadata" Concern You?


Smith v. Maryland
(1979) 442 U.S. 735

Facts

After a robbery victim had received threatening phone calls from a man identifying himself as the robber, the telephone company, at the request of the police who had not obtained a warrant or court order, installed a pen register at the company's central offices to record the numbers dialed from a suspect's home telephone. The suspect was convicted of the robbery based on the evidence obtained from the pen register. The suspect appealed his conviction on the ground he was convicted by evidence obtained without a warrant.

Note: According to a "secret" memorandum issued by the Attorney General, on November 20, 2007, The National Security Agency maintains a vast data base of "metadata." Metadata is information that identifies who calls or emails you, and who you email and call, what websites you visit, and how long you remain on the site. For example, the data base contains the fact you visited Amazon.com yesterday. Whether it also identifies the fact that, while on the site, you looked at a list of "Jihadist" books is not publicly known. The Memorandum expressly states that the NSA database, at least as of 2007, "does not concern the substance, purport, or meaning of the communications" themselves.

 

The Government has induced Detroit car manufacturers to install in their automobiles a "black box" that records information relating to your use of the automobile; e.g., what speed you travel at, how soon you braked before a collision. There is no technical obstacle to the black box recording the telephone calls you make from the vehicle, or recording the addresses you stop at, or the routes you take.

 

There is no technical reason why a "wolfcam 3rd eye" audio/visual recorder cannot be installed in the wall of every room in every home in America.

 

The Los Angeles Times, on August 1, 2013, quoted U.S. Senator, Patrick Leahy as saying during a congressional committee investigation, when interrogating NSA people: "We could have more security if we strip-searched everybody that came into every building in America. We'll have more security if we close our borders completely to everybody. We'll have more security if we put a wiretap on everybody's cell phone, if we search everybody's home."

 

Five justices of the Supreme Court signed onto the majority opinion upholding the conviction. Three justices dissented. One justice did not participate.

The Majority's Reasoning

"This Court has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate' expectation of privacy that has been invaded by government action. This inquiry normally embraces two discrete questions. The first is whether the individual, by his conduct, has `exhibited an actual (subjective) expectation of privacy;' i.e., whether he has shown by his conduct that he seeks to preserve something as private. The second question is whether the individual's subjective expectation of privacy is one that society (as interpreted by the Justices) is prepared to recognize as `reasonable.'

Note: Here the petitioner cannot claim that his property was invaded, as the pen register was installed on the premises of the phone company. Thus, his claim of unconstitutional conduct on the part of the government must hang on the premise that the government's action invaded his "legitimate"(i.e., what society is willing to recognize) expectation of privacy. Here, the government's snooping device did not capture the content of the petitioner's telephone communication, only the fact that he dialed the victim's telephone number.

 

 The claim of a `reasonable' expectation of privacy must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. Pen registers are routinely used (by telephone companies) to determine whether a phone is being used to conduct a business, to check for a defective dial, or to check for overbilling. (but not to check to see who you dialed up.) The fact the petitioner dialed the victim on his home phone could make no conceivable difference, nor could any subscriber rationally think that it would.

Second, even if petitioner did harbor some subjective expectation of privacy that the phone numbers he dialed (or the emails he sent or the websites he visited) would remain private, this expectation is not one that society is prepared to recognize as `reasonable.' This Court has consistently held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties (banks, insurance companies, hospitals, internet services, telephone companies, etc, etc.)

Comment: 

So there it is: you are a constituent member of society; how do you make known what you reasonably expect will be private, not to be vacuumed up by Government? Senator Leahy's statement provides a clue. He said, "I think the patience of the American people is beginning to wear thin."

 

Justices Stewart, Marshall, and Brennen Dissent 

"We are not persuaded that the numbers dialed from a private telephone company fall outside the constitutional protection of the Fourth Amendment. As has been said, `the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.'

The central question in this case is whether a person who makes a telephone call (or sends an email, or visits a website) from his home is entitled to make the assumption that the words he utters into the mouthpiece will not be broadcast to the world.  It is simply not enough to say that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police. I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the person and places called, and thus reveal the most intimate details of a person's life. (Exactly why the National Security Agency, the Federal Bureau of Investigation, the Defense Department, and the Central Intelligence Agency want your telephone numbers stored in a data base to be scrutinized at their will, with no judicial restrictions.)

The crux of the Court's holding is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one `society is prepared to recognize as reasonable.' In so ruling, the Court holds the petitioner assumes the risk that information of his calls will be conveyed to the government. The analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice. The petitioner presumably had exercised some discretion in deciding who should enjoy his confidential communications. But, unless petitioner is willing to forego use of the telephone altogether he cannot help but accept the risk of surveillance. It is silly to speak of assuming the risk in this context where, as a practical matter, individuals have no realistic alternative.

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections.

Note: Assuming any one can establish "standing" to complain of the government's current world-wide, all inclusive snooping behavior, the majority did insert into their decision a qualifying statement; i.e., "that in some circumstances a further normative inquiry might be made."

 

In our view, whether privacy expectations are legitimate should depend on the risks the citizen should be forced to assume in a free and open society. We should not recite risks without examining the desirability of saddling them upon society. The use of pen registers constitutes an extensive intrusion that significantly jeopardizes individuals' sense of security, requiring something more from the courts than suggesting self-restraint by law enforcement. Citizens should be entitled to assume that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the telephone company's business purposes. Accordingly, we would require the government to obtain a warrant before enlisting telephone companies to secure information otherwise beyond its reach."

Joe Ryan