The opinion in Smith v. Maryland hinged on the telephone user's expectation of privacy. The court reasoned that since the the telephone company had to collect the numbers of the person called anyway to make the call and for billing and other legitimate purposes, the customer had no expectation of privacy with regard to those numbers. Therefore, the government did not need an warrant to collect information for that customer - they could thus install a pin register to collect the limited information (all quotes below come from Smith v. Maryland):
Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.
This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." United States v. New York Tel. Co., 434 U.S., at 174 -175.
When folks point to this case and say "its legal!" they show a vast misunderstanding of what legal means and how our legal system works. To understand this case, and privacy expectations in general as applicable to the requirement to obtain a warrant, you must first look at Katz v. United States, 389 U.S. 347 (1967), which sets for the standard for what is deemed a "search" within the meaning of the 4th amendment.
In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a "search" can occur only when there has been a "physical intrusion" into a "constitutionally protected area," noting that the Fourth Amendment "protects people, not places." Id., at 351-353. Because the Government's monitoring of Katz' conversation "violated the privacy upon which he justifiably relied while using the telephone booth," the Court held that [442 U.S. 735, 740] it "constituted a `search and seizure' within the meaning of the Fourth Amendment." Id., at 353.
Since Katz, the court has formulated at two part test: First, has the individual exhibited an actual (subjective) expectation of privacy?; second, is that expectation of privacy reasonable? This is a fact-based test.
Consistently with Katz, this Court uniformly 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. E. g., Rakas v. Illinois, 439 U.S. 128, 143 , and n. 12 (1978); id., at 150, 151 (concurring opinion); id., at 164 (dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7 (1977); United States v. Miller, 425 U.S. 435, 442 (1976); United States v. Dionisio, 410 U.S. 1, 14 (1973); Couch v. United States, 409 U.S. 322, 335 -336 (1973); United States v. White, 401 U.S. 745, 752 (1971) (plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368 (1968); Terry v. Ohio, 392 U.S. 1, 9 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," 389 U.S., at 361 - whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id., at 351. The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as `reasonable,'" id., at 361 - whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances. Id., at 353. 5 See Rakas v. Illinois, 439 U.S., [442 U.S. 735, 741] at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U.S., at 752 (plurality opinion).
The court in Smith v. Maryland applied this test to the limited information pin registers gather. They first looked at the
precise nature of the alleged invasion of privacy:
In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded or that police intruded into a "constitutionally protected area." Petitioner's claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a "legitimate expectation of privacy" that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted:
"Indeed, 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 - a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." United States v. New York Tel. Co., 434 U.S. 159, 167 (1977). [442 U.S. 735, 742]
Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.
(Emphasis Added)
The court went on to do a detailed FACT BASED analysis of the two part test. Each situation is FACT BASED. You cannot apply the facts of what a pin register does to the what the NSA is doing. Each situation must be analyzed on its own facts and own merit. The facts are WHOLLY different.
That is why when folks scream "ITS LEGAL BECAUSE OF THE 1979 CASE", it tends to upset me. Because it means one of three things:
1. They have not read the case and are ignorantly repeating something they have heard
2. They have read the case but lack the intelligence or legal training to understand it, but act like they do.
3. They have an agenda, and they are trying to distort reality to fit that agenda.
Hope this helps in your understanding.
= new reply since forum marked as read
