… and you’re not following developments in Fourth Amendment law.
Jeffrey Toobin is the latest to claim that Smith v. Maryland settles the Fourth Amendment issues around the National Security Agency’s acquisition of data about every call made in the United States. He even links to the text of the decision in a recent blog post.
The majority opinion in Smith did say that people don’t have a reasonable expectation of privacy in phone records, but that rationale is weak, and the facts of Smith are inapposite to the present controversy. I think that’s easily gathered from reading the case with awareness of legal currents.
Here’s what happened in Smith:
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith.
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. (citations omitted)