Finally, some media attention to the thin legal basis for the NSA surveillance of telephone and e-mail communications. Stories today about the decision of  U.S. District Court Judge Richard Leon that the program is unconstitutional report his dismissive comments on Smith v. Maryland. The 34-year-old Supreme Court opinion says you don’t have an “expectation of privacy” when you dial a telephone. This opinion was the basis of the government’s defense in the case before Leon. He wrote that “the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies” today are so unlike 34 years ago that the Smith decision does not apply. Here is what I reported in June:

 

By LARRY CALLOWAY

Be reasonable. The government can look at your phone and email logs. You should know that by now.  All reports say this,although there may be limits.  According to the government, there is protection of privacy, but that depends upon secret decisions by secret courts. So you don’t know. You have no “reasonable expectation of privacy,” as the Supreme Court likes to put it.

The issue was framed in a 1967 opinion by the court involving the Fourth Amendment, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Without getting a warrant,  the FBI placed a listening device on a phone booth to catch a man who was phoning unlawful bets from one state to another. His lawyers argued it was a violation of his privacy. The federal prosecutors argued the phone booth was public, not a private place.

Justice Potter Stewart wrote the 7-1 majority opinion (Katz v U.S.) siding with the the bookie. “One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” The opinion extended Fourth Amendment protection to any situation where a person has an expectation of privacy. And it expressed Stewart’s dictum: “Property does not have rights. People have rights.”

Stewart, appointed by Eisenhower in 1954, was a strong defender of expressed constitutional rights like freedom of speech. (He said, “Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.”) He was regarded as a judicial conservative like Harry Blackmun, whom he joined in Roe v Wade by giving more weight to  a woman’s right to privacy in medical matters than to the interest of Texas in flatly criminalizing all abortions.

The two veteran justices would clash, however, in the 1979 case (Smith v. Maryland) that defines today’s debate over government access to phone records. It involved a burglary victim in Baltimore who was receiving threatening and obscene phone calls from a man who said he was the guy who had robbed her house. She suspected he was the driver of a car that paraded the neighorhood. The police confirmed his identity and went to the phone company. A mechanical device called a pen register was put on his line at the switching station. It recorded all the calls from his number, revealing more calls to the woman.  Nobody had thought to get a search warrant.

The creep was arrested and convicted, but his lawyers argued the evidence was obtained in violation of the Fourth Amendment. Blackmun wrote the 5-3 majority opinion that agreed with the prosecution and upheld the lower courts. It made two essential points:

“First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. . . .

“Second, even if petitioner  did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as “reasonable.” When petitioner voluntarily conveyed numerical information to the phone company and “exposed” that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information   to the police.”

Therefore, under court law, no search warrant is required to make a record of phone calls (or other information) given to a phone company (or other provider).  The Blackmun opinion still stands. Yes, Congress afterwards set some legal procedures for warrants where national security is involved. But secret ex parte (meaning only one side is represented) orders aren’t what most people would recognize as Fourth Amendment protection.

Soon after the opinion was filed, I heard a law professor at Stanford express her concern about its implications  for the dawning digital age. Placing a mechanical device on a mechanical switch for a single line was not the same work as registering calls from millions of numbers with a few key strokes at a covert distance.  More present and topical in 1979 was the issue of warrantless wire taps by the Nixon administration only a few years earlier. The opinion, she said, would become a pretext for more invasions of privacy by the government.

As I said, it was not a unanimous decision. The 5-3 ratio (with one justice not participating) is roughly proportional to the results of a recent CBS-New York Times poll showing: “When it comes to their own communications being tracked, 6 in 10 Americans said they were not very or not at all concerned about the government’s collecting their phone records or monitoring their Internet use. Nearly 4 in 10 were somewhat or very concerned.”

The dissent by Stewart and Justice Thurgood Marshal (with another justice concurring) was vigorous.

Blackmun had referred to a case in 1973 involving the warrantless acquisition of bank records where the court decided:  “The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

Justice Marshall responded: “It is idle to speak of  ‘assuming’ risks in contexts where, as a practical matter, individuals have no realistic alternative.” (Think: Google, Yahoo).

“Many individuals,” he wrote,  “including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.”  (Think: AP)

Stewart doubted that the majority in the opinion actually knew what people thought about reasonable expectation of privacy.

“The numbers dialed from a private telephone – although certainly more prosaic than the conversation itself – are not without ‘content.’ 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.”

So wrote a reasonable man back in the “mechanical” age.  I am from that age, and I agree.