53rd Henry J. Miller Distinguished Lecture Series

• Jurisdiction: United States,Federal
• Publication year: 2014
• Citation: Vol. 30 No. 4

53rd Henry J. Miller Distinguished Lecture Series

The Hon. Justice John Paul Stevens
The Supreme Court of the United States, gsuexecutiveed@gmail.com

[Page 917]

THE 53RD HENRY J. MILLER DISTINGUISHED LECTURE SERIES GEORGIA STATE UNIVERSITY COLLEGE OF LAW APRIL 16, 2014

The Honorable John Paul Stevens (Ret.)

In June of 1979, at the end of my fourth term as a Justice of the Supreme Court, I provided one of the five votes supporting the majority's decision in Smith v. Maryland, 442 U.S. 735, the case holding that the Constitution does not require the police to obtain a search warrant to authorize the installation of a pen register to record the telephone numbers dialed from an individual suspect's home telephone. My vote in the case was influenced by my experience as a naval officer during World War II. Today I plan to say a few words about that work and then to discuss the question whether the considerations supporting the holding in Smith apply to today's practice of creating, using, and preserving a database including similar information about all of the telephone conversations in the United States, including the millions that use cell phones that did not even exist in 1979.

I

In the summer of 1941, Leon Smith, the Dean of Students at the University of Chicago who was serving as a confidential recruiting agent for the United States Navy, provided me with the opportunity to earn a commission as an Ensign if I successfully completed the Navy's correspondence course in cryptography. One of the conditions of accepting that opportunity was an oath that I would never divulge either the existence of the course or the nature of my work for the Navy. Since Congress later enacted legislation that allows me to discuss that work today, I can tell you that I eventually received a

[Page 918]

letter inviting me to go to the Great Lakes Naval Station to take a physical exam and formally apply for a commission. I did so on December 6th, 1941 and the Japanese responded by attacking Pearl Harbor the next morning.

While my correspondence course had provided me with training in how to read the text of encoded and encrypted messages, when I was on active duty I served as a traffic analyst, rather than as a decoder or cryptographer. The job of the traffic analyst was to obtain intelligence about enemy activities by monitoring his communications without reading their text—what today is often called "metadata" analysis. That skill is critically different from actually reading intercepted messages. Knowledge about the volume of the traffic in certain locations, identities of senders and addressees, their choice of codes, and the length and timing of their messages may enable the analyst to draw useful inferences; those inferences, however, are far less reliable or informative than intelligence gained by reading the texts of the messages themselves.

A dramatic event that occurred in April of 1943 when I was on duty as the traffic analysis watch officer in Pearl Harbor illustrates the vast difference between the two intelligence techniques. Intercepted traffic between the headquarters of the Japanese Navy's Commander-in-Chief in Tokyo and its Base Force No. 8 at Rabaul, New Guinea, persuaded us that the enemy was developing a response to its recent defeats on...