Co-authored by Dr. Stephen Bryen, CEO Ziklag Systems
On March 5, 1976, in Baltimore Patricia McDonough was robbed. She was able to give police a description of the robber and also information about a 1975 Monte Carlo automobile standing near where the crime occurred. Thereafter she started getting threatening and obscene phone calls from a man who said he was the robber.
The 1975 Monte Carlo belonged to Michael Lee Smith. At police request, a pen register was installed at the phone company central office to record numbers dialed from Smith's home telephone. When the police saw that he was calling Patricia McDonough, they got a warrant to search Smith's residence where they found a page in the phonebook folded down where Ms. McDonough's name was listed. This led to Smith's arrest and subsequent conviction where he was sentenced to six-year imprisonment.
The case was appealed on the basis that the pen register was installed on Smith's phone without the police first obtaining a warrant. Smith's attorney argued that the pen register violated Fourth Amendment guarantees of "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The appeals court saw this as a critical issue and requested a review by the Supreme Court. This led to a vital decision in a case known as Smith v. Maryland (442 U.S. 736).
The Supreme Court decision in 1979, although based on a now nearly extinct technology, not only has resulted in widespread warrantless searching of phone records by law enforcement, but by extension it also allows the National Security Agency and other government organizations to spy on citizen's phone records.
The New Jersey case also is important to some Internet businesses that rely on surveillance of their customers to gather information -- most notably Google, which is using the 1979 Supreme Court decision as a major argument allowing Google to scan customer's emails and extract information "in the normal course" of conducting its business. Google has just filed a Motion to Dismiss in a case pending before the District Court of Northern California against petitioners who are claiming that Google's search of emails is a violation of federal and state wiretapping laws.
The Supreme Court 1979 decision turned on two issues. The Court asked whether, first of all, the person seeking protection under the Fourth Amendment had a "reasonable expectation" of privacy and, secondly, whether the person's expectation of privacy is recognized as "reasonable" by society.
Put into modern terms, Google says that a user of its Gmail system (there are now nearly half a billion Gmail users) does not have a reasonable expectation of privacy because Gmail is a free service and users are advised that Google can make commercial use of information it gathers from the emails that traverse its system. Google's lawyers also are saying that anyone who sends a message to a Gmail user, even though not directly advised of Google's privacy rules, likewise has no reasonable expectation of privacy.
Similarly the government is saying that it can acquire phone company "meta data" without needing a warrant because users have no reasonable expectation of privacy when they use a public conveyance such as a telephone company -- the exact meaning of the 1979 Supreme Court decision. By extension in a current case before the Supreme Court (U.S. v. Brima Wurie), the Justice Department is saying that it can search a person's cell phone without first obtaining a warrant. The Obama administration's brief asserts that there is a risk someone might zero out (or erase) the phone's contents unless it was immediately searched by police. This current case involves an individual involved in a crack cocaine arrest where the mobile phone was among items seized by the police during the arrest.
The 1979 case turned on what is a "justifiable" or "reasonable" expectation of privacy. The court pointed out that since the pen register was installed in the central switching office of the phone company, the person cannot claim that the person's "property" was invaded or that the police "intruded into a 'constitutionally protected area.'" The court pointed out that a "law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed...." This is precisely the same argument that the U.S. government makes in acquiring billions of phone records ("meta-data"). It means that no one has a reasonable expectation of privacy at least for meta-data and therefore no warrant is needed.
There are many problems with the Court's finding. To begin with, the government can know everyone you call, when you call, and for how long you call, without seeking any permission to do so. This applies both to international and domestic calls, to every business, organization and to all individuals.
Furthermore, the government can obtain this information even though there is no law enforcement rationale or component. Inter alia, this means (based on the 1979 decision) that the government can make whatever use of the information it wants, including disclosing the information collected. In the same manner, Google could (not that it would) disclose to the public that a certain individual, business, or organization is often in contact with X, Y or Z or that it purchases A, B, or C, etc. Or Google could turn this information over to the government, no warrant needed.
In short, the trend in court decisions is leaving individual protection by the wayside. The same holds true for government actions in spying on citizens and for corporate actors doing the same thing. All of this leaves the intent of the Fourth Amendment in the dust, a casualty of modernity and of the misappropriation of our rights and freedoms. The bottom line is that democracy itself is under threat if the right to privacy is disregarded.