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When did your phone habits become easy pickings for the government? In 1979.

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Published on June 12, 2013

stewart

Justice Potter Stewart saw this coming.

The recent revelations about the NSA’s spying on Americans has prompted a great deal of justifiable hand-wringing over the PATRIOT Act, which first passed in 2001.

But the real problem predates that law by more than 20 years. The reason the PATRIOT Act could ever give the government an easy channel to the “business records” that show all the numbers you dial or take calls from on your phone is that Justice Harry Blackmun (who had earlier authored the Roe v Wade decision based on a “right to privacy”) wrote a majority Supreme Court opinion 34 years ago that those records aren’t protected by the Constitution. 

If you’re upset that FBI agents can obtain records on all phone users by merely pretending in a court document that your grandmother’s phone habits (and those of tens of millions of other Americans who never fell under any suspicion) are somehow relevant to a terrorism investigation, then turn your ire here. Blackmun’s 1979 opinion in Smith v. Maryland continued a dangerous trend toward toward giving government access to all corporate information — including the information you give corporations when you do business with them. 

From Bloomberg:

Aren’t universal orders for phone and Internet logs precisely the kind of “general warrant” that inspired so much fear and loathing in the Framers of the Constitution?

Unfortunately, as the NSA dragnet’s defenders are quick to point out, that’s not how the Supreme Court sees things. In its earliest Fourth Amendment decisions, the court held that business records were as protected as any other private papers. But as the modern regulatory state grew in the early 19th century, the court changed its tune — not because there was any principled reason to think the Fourth Amendment hadn’t been meant to protect business papers, but because such protection “would practically nullify” the growing body of new federal laws regulating businesses.

At first, this didn’t seem to pose much threat to personal privacy: These were corporate files, not personal diaries, after all. Then, in a 1976 case called United States v. Miller, the court extended that logic to individual financial records that had been entrusted to banks.

Three years later, in Smith v. Maryland, telephone records were found to be unprotected as well. When you used technology that left traces of your activity in the phone company’s files, the court reasoned, you “assumed the risk” that the company would reveal that information — even if they had explicitly promised not to — and waived your “reasonable expectation of privacy” under the Fourth Amendment.

So just to be clear: The “right to privacy” protects the taking of human life through abortion, but not the phone call of the mother who sets the appointment.

Justice Potter Stewart penned the dissent to the Smith case, pointing out that if there’s no constitutional protection to guarantee the government needs probable cause and a warrant to access the numbers you dial, then there’s no good logical or legal reason why the content of your phone call isn’t also fair game:

[T]he Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled “to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Katz v. United States, supra, at 352.

The central question in this case is whether a person who makes telephone calls from his home is entitled to make a similar assumption about the numbers he dials. What the telephone company does or might do with those numbers is no more relevant to this inquiry than it would be in a case involving the conversation itself…

The numbers dialed from a private telephone – although certainly more prosaic than the conversation itself – are not without “content.” Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.

Congress can make Stewart’s reasonable dissent a reality. It can right this wrong, and restore the integrity of privacy in contracts between people and corporations, with a statute restoring Fourth Amendment protections to business records. Without that, the Fourth Amendment doesn’t mean much anyway. It isn’t possible to live a modern life without sharing nearly all of one’s personal information with a corporation.

This would not destroy anti-terrorism efforts — it would only require that the government obtain warrants when it wants to study the telephone habits of people actually suspected of terrorist activity — and end the ocean-wide fishing expedition that the NSA has been engaged in for the last seven years.

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