The precedent that looms over the legal challenges to the NSA’s massive phone data collection is the 1979 case of Smith v. Maryland. The issue before the Supreme Court in Smith was whether the police’s use of a pen register—a device that identifies the numbers dialed from a particular phone—constituted a search under the Fourth Amendment and therefore required a warrant. Michael Lee Smith had been convicted of robbery based on evidence from a police investigation that relied on information secured from a pen register, for which the police had no warrant. The Court held, 5-3, that because an individual had no reasonable expectation of privacy with regard to the phone numbers one dials (as opposed to the contents of the call—see Katz v. United States (1967)), the collection of these numbers was not a search for purposes of the Fourth Amendment and so no warrant was needed. Smith’s conviction was upheld.
Some observations about the oral arguments:
First, this was a notably lively argument. The lawyer defending Smith was only two sentences into his argument when then-Justice William H. Rehnquist jumped in. There are several extended exchanges with the lawyers and the justices in which no one is getting more than a sentence or two out at a time. (Unlike today’s “hot” bench: The justices back in 1979 seemed far less interested in hearing their voices. The judicial monologues and extended hypotheticals that are commonplace in today’s oral arguments were largely absent in Smith.)
Second, Smith’s lawyer, Howard L. Cardin, did not have a good day. When Justice Rehnquist offered an argument supporting his case, he struggled to recognize it as a gift. He later he got into a kind of standoff with an irritated Justice Thurgood Marshall on a technological question, which culminated with Marshall declaring the lawyer wrong on his facts and urging him to stick with the record of the case.
And then there were the pork chops. One of Cardin’s stronger arguments was an analogy to a maid cleaning a hotel room. “[I]f she’s coming in, performing her duties, and comes across something, that is one situation,” he explained, But if she goes into a hotel room at the request of the police, looking for something suspicious, “then she is operating as the agent of the police department and is not properly on the premises at that time.” Justice John Paul Stevens asked Stephen H. Sachs, Maryland’s Attorney General, if he had a response to the hotel room analogy. This is when the pork chops arrived.
Justice John Paul Stevens: What do you do with your opponent’s example of a maid in a hotel room?
You certainly have an anticipation that a third party will be in the room which don’t expect the police to come in.
Mr. Stephen H. Sachs: That’s true, Your Honor.
The Stoner case, I think, this Court distinguishes the hotel situation and I think the answer to that is that, in a hotel situation, the hiring of the hotel room does not expect that the full search from police officers without a warrant will take place.
It is very different, we suggest, than the communication out from that hotel room or from one’s home on leased lines of a company which is not your own, on equipment which is not your own, of a communication much like calling the plumber and saying “I have water in my cellar, please come.”
That plumber can, if he wishes, tell the police “Sachs has water in his cellar.” The call out from your hotel room to the butcher that says “I want three pork chops” could be revealed to the police, “Sachs want three pork chops.”
In the same sense, when I say “I want 4666187” to the phone company, I run the risk, we say the legitimate risk, that that information may be communicated to the police.
Justice Thurgood Marshall: And used to convict me and put me in jail?
Mr. Stephen H. Sachs: Yes, Your Honor.
Justice Thurgood Marshall: That’s a lot different from a pork chop.
Mr. Stephen H. Sachs: Your Honor– [Attempt to Laughter]
Chief Justice Warren E. Burger: Going back–
Mr. Stephen H. Sachs: The answer to that is, yes, Your Honor. You’re right.
Assuming the litigation challenges to the NSA data program reach the Supreme Court, there are two things we can predict with confidence. First, that the lawyers and justices will offer up plenty of interesting hypotheticals and analogies as they puzzle over what is and what is not a reasonable expectation of privacy with regard to phone communication. And second, that no lawyer will attempt to resurrect the pork chop analogy.