The Erosion of Smith v. Maryland.

AuthorRamirez, Geneva

CONTENTS INTRODUCTION I. SMITH V. MARYLAND A. The Facts B. The Supreme Court's Majority Opinion C. The Supreme Court Dissenting Opinions 1. Justice Stewart 2. Justice Marshall II. THE ERODING BASIS OF SMITH A. The Subjective Expectation B. The Objective Expectation 1. The Nature of the Challenged Activity 2. The Third-Party Doctrine CONCLUSION INTRODUCTION

In 1979, the Supreme Court held in Smith v. Maryland (1) that individuals do not have a reasonable expectation of privacy in the telephone numbers they dial. (2) So the Fourth Amendment did not apply when the government requested that Smith's telephone company use a pen register to record all of the outgoing numbers dialed from his phone. (3) The Court justified its decision by emphasizing that pen registers were simple mechanical devices with limited functions, recording only the telephone numbers dialed from the particular landline to which a register was attached. (4)

But today, pen registers are not so limited. In fact, the term no longer refers to a particular device but to any "device or process which records or decodes dialing ... information," (5) including outgoing telephone numbers, the date, time, and length of calls. (6) Even in 1979, it was easy to infer private information from a list of telephone numbers because "phone numbers are unique to their owners." (7) Simply by using a telephone directory, phone numbers can be matched to their owners to reveal who a person was calling. The receiving party could be a friend, an addiction resource hotline, a church, or a political organization. And by identifying each of these recipients, private information can be inferred about the caller. (8) These limited inferences mean that telephone numbers are not just telephone numbers as the Smith Court suggested. This is even more true today. With the development of inexpensive data storage and datamining technology, the inferences to be drawn from aggregated telephony metadata can often serve as a cost-effective proxy for the content of the conversations themselves. (9)

In Carpenter v. United States, (10) the Supreme Court recognized the threat to privacy posed when the government is permitted to amass and analyze large amounts of metadata about an individual. (11) It held that the Fourth Amendment applies when the government seeks to acquire at least one week's worth of an individual's cell site location information ("CSLI") (12)--location metadata automatically generated by dint of a cell phone's operation and stored by cell-service providers for business purposes. (13) The analysis in Carpenter marks a shift in the Court's understanding of how the Fourth Amendment applies in the context of digital metadata to protect against "too permeating police surveillance." (14)

Although aggregated telephony and location metadata can often be analyzed to yield similar (if not the same) private information, the Supreme Court insists that Smith is still good law. (15) This Comment analyzes how, despite the Court's protestations, technological developments and changes in the Supreme Court's understanding of the Fourth Amendment, as illustrated by Carpenter, have undermined and eroded the reasoning on which Smith was founded. Part I provides a detailed overview of the facts and the majority and dissenting opinions of Smith v. Maryland. Part II describes how the technology surrounding the acquisition and use of telephony metadata has changed in the forty years since Smith was decided and compares the Court's reasoning in Carpenter and Smith. Allowing the government unfettered access to telephony metadata in 1979 had drastically different privacy implications than allowing that same access today. Therefore, this Comment concludes that the same protections provided to CSLI in Carpenter should be extended to Smith's telephony metadata.

  1. SMITH V. MARYLAND

    1. The Facts

      In 1976, as Patricia McDonough was walking home late one night, she passed a man changing a tire on his 1975 Chevrolet Monte Carlo. (16) As she neared her home, the man grabbed her from behind and forcibly took her wallet, which contained her name and address. (17) During the struggle, McDonough got a "full-face view of the robber." (18) When the man fled, she reported the incident to the police, providing a description of both her attacker and the Monte Carlo. (19)

      Shortly after the robbery, McDonough began receiving "threatening and obscene" phone calls on her landline from a man identifying himself as her attacker. (20) During one such call, the caller told McDonough to step outside her house. (21) Upon doing so, she recognized the Monte Carlo she had observed at the robbery "moving slowly past her home." (22) She reported these calls to the police and, with the help of a friend, installed a recording device and recorded three or four of the calls. (23)

      Eleven days after the robbery, Michael Smith stopped a police officer in the general vicinity of McDonough's home and asked for help "opening the locked door of his 1975 Monte Carlo." (24) The officer who Smith stopped happened to be the same officer who had taken McDonough's statement following the robbery. (25) Recognizing the car that McDonough had described to him, the officer recorded the vehicle's license plate number. (26) When he ran the plate number, he discovered that the Monte Carlo was registered to Smith and identified Smith's telephone number. (27)

      At the police's request, the telephone company installed "a pen register at its central offices to record the numbers dialed from the telephone at [Smith's] home." (28) The pen register--"a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released" (29)--recorded all of the outgoing numbers from Smith's phone but it did not record whether those calls were completed. (30) The pen register revealed that a call was placed from Smith's home phone to McDonough's residence. (31) Based on this evidence, the police secured a warrant to search Smith's home; during that search, they seized a phone book. (32) The page on which McDonough's telephone number appeared had been dog eared.33 Smith was arrested and McDonough identified him in a lineup as the robber. (34)

      Smith was indicted for robbery. (35) After his suppression motion was denied, "[t]he pen register tape ... and the phone book" were admitted into evidence. (36) Smith was convicted and sentenced to six years in prison. (37) The Maryland Court of Appeals affirmed, holding that "there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the [F]ourth [A]mendment is implicated by the use of a pen register installed at the central offices of the telephone company." (38)

    2. The Supreme Court's Majority Opinion

      On appeal, Smith asked the Supreme Court of the United States to consider "whether the installation and use of a pen register" to reveal the outgoing telephone numbers dialed from the landline in Smith's home "constitute a 'search' within the meaning of the Fourth Amendment." (39) Writing for the majority, Justice Blackmun answered with a resounding no. (40)

      While acknowledging the traditional property-based conception of the Fourth Amendment, (41) Justice Blackmun explained that when "determining whether a particular form of government-initiated electronic surveillance is a 'search' within the meaning of the Fourth Amendment, [the] lodestar is Katz v. United States." (42) In Katz, the Court considered whether the Fourth Amendment's warrant requirement applied when FBI agents attached an electronic listening device to the exterior of a phone booth to record the conversations Katz carried on inside. (43) While not replacing the traditional property-based conception of the Fourth Amendment, (44) the Katz Court held that the Fourth Amendment applies when a government invasion "violate[s] the privacy upon which [an individual] justifiably relied." (45) Justice Harlan, in his concurrence, understood the majority's language to require both that the individual "exhibited an actual (subjective) expectation of privacy" and "that the expectation be one that society is prepared to recognize as 'reasonable.'" (46) This two-prong analysis has been adopted by the Supreme Court in subsequent cases, including Smith. (47)

      In Smith, though purporting to apply Justice Harlan's Katz analysis, the Court first asked, not whether Smith himself exhibited "an actual (subjective) expectation of privacy," but whether a reasonable person would "entertain any actual expectation of privacy in the numbers they dial." (48) This apparent misapplication of Katz's subjective prong likely stems from an inherent problem with the subjective inquiry itself: the only person who has knowledge of an individual's subjective belief is that individual; for everyone else, subjective belief can only be divined through guesswork. (49) The Court attempted to circumvent this conundrum by assuming that if a reasonable person would not have believed something, odds are that the individual in question did not believe it either. (50)

      In applying its modified subjective inquiry, the Court assumed that " M h 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" and that "[a]ll subscribers realize ... 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." (51) The Court also observed that "[m]ost phone books tell subscribers, on a page entitled 'Customer Information,' that the company 'can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.'" (52) Based on these observations and assumptions, the Court concluded that a reasonable...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT