Big Constitutional Confrontation On The Right Of Privacy?

Why Don’t You Guys Just Leave Us Alone?

President Bush said, in defense of his National Security Agency’s access to millions of phone records, “The privacy of all Americans is fiercely protected in all our activities.”


My question is, what privacy? I thought most Americans knew their phone calls, medical records, credit reports, electronic purchases, email traffic and Internet searches are accessible to government.

When Rep. Nancy Pelosi suddenly called for a Congressional review of the NSA program, I wondered where she was when the other members of the Intelligence Committee were briefed on it several years ago.

When Sen. Dianne Feinstein said, “I believe we are on our way to a major constitutional confrontation on the Fourth amendment,” I wondered why a member of the Senate Judiciary Committee didn’t know about the “pen register” opinion of the U.S. Supreme Court.

The 1979 opinion, which says we have no legitimate expectation of privacy with regard to phone records, has been reinforced with at least 10 citations since then. To establish this dictum, however, the court had to deal first with a contrary 1967 opinion known as Katz v. United States, which was the authority in privacy opinions and had even been cited in Roe v. Wade.

Katz was a smalltime Los Angeles bookie who was accustomed to using a pay phone to forward bets to New York and Boston. FBI agents had been watching him and, without bothering to get a search warrant, bugged the public phone booth but not the phone. He was convicted under federal gambling laws on the basis of tapes of his side of the phone conversations. The Supreme Court overturned the conviction, citing the Fourth Amendment, which says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fourth Amendment goes on to spell out the due process of law required for warrants.

The Constitution does not explicitly state a right of privacy. Implicitly, however, the spirit the basic law of the land is what Justice Louis Brandeis called “the right to be left alone.”

But that was in 1890, before the Fourth Amendment was confronted by the advent of mass telecommunication and the reality that government will do things because it can, not because they are right. Thus came the pen register opinion, known as Smith v. Maryland.

Smith was a Maryland thug who robbed a woman and then began harassing her by telephone, bragging about the robbery. On the basis of her description of the getaway car, police identified Smith as a suspect and, to nail him, they had the local phone company put a pen register on his line in a central switching station.

The device, primitive by comparison with today’s speed-of-light computers, printed out paper tapes of calls dialed from Smith’s home phone. One of the numbers dialed was the victim’s, and Smith was and convicted on the basis of this evidence. The problem was that the police had not bothered to get a search warrant and the phone company hadn’t bothered to ask for one. Smith’s lawyers appealed.

Justice Harry Blackmun wrote the majority opinion, rejecting the claim that the pen register evidence should have been suppressed. “First,” he said, “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. . . . Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as `reasonable.'”

The majority opinion concluded, “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”

Similarly the court had already held there is no reasonable expectation of privacy with regard to bank records. “The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

In dissent, Justice Potter Stewart said, “Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but 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 persons and the places called, and thus reveal the most intimate details of a person’s life.

And Justice Thurgood Marshall said, “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.”

Congress has enacted privacy laws in the wake of the information explosion. That’s why we get dense annual legal statements of what various organizations will and will not do with our personal information. But we don’t get them from government agencies. That’s the confrontation that Congress has avoided – and, after the CNN opportunities are depleted, will, I suppose, continue to avoid.

And don’t expect our new Supreme Court to get interested in seeing that people are left alone. The court, almost by political assignment, eventually will reconsider Roe v. Wade, probably the most potent statement of the right of privacy in the nation’s constitutional history. It is significant that Justice Stewart based his Roe v. Wade concurrence in part on the subsequently confined, distinguished and, I think, disabled opinion in Katz v. United States