by Matthew L. Schafer
Setting the Scene
On March 5, 1976, just a few months before the nation’s bicentennial, Michael Lee Smith robbed Patricia McDonough, and, as a result, he would fundamentally alter the Constitution of the nearly 200 year old America. Indeed, three years after the robbery, the United States Supreme Court, in an appeal brought by Mr. Smith, would hold that citizens had no expectation of privacy in information that they give to third parties.
Mr. Smith found his way to the Supreme Court, because his otherwise anonymous robbery was foiled by his insistence on terrorizing his victim in the aftermath. See when Mr. Smith robbed Ms. McDonough, he didn’t quit there. Instead, he began sending her “threatening and obscene phone calls.” He also began stalking Ms. McDonough at her home.
The police eventually caught a break when they recorded a license plate number off a 1975 Monte Carlo. Mr. Smith owned a Monte Carlo. And, with this evidence, the police tracked down his home address and had Mr. Smith’s telephone company place a “pen register” on Mr. Smith’s phone. The police didn’t bother to get a warrant, even though courts were split as to whether the police needed one in such a case.
Just a day after the pen register was in place, it recorded a call from Mr. Smith’s home to Ms. McDonough’s. Based on this evidence, the police executed a search warrant on Mr. Smith’s house.
When the government sought to introduce evidence of the search of the home, Mr. Smith objected on the basis that it was impermissibly seized as a result of the warrantless pen register. His objection was denied, and he was convicted and sentenced to six years in jail.
The Oral Argument at the Supreme Court
Mr. Smith appealed his conviction all the way to the United States Supreme Court. Just over three years after the police department ordered the phone company to place a pen register on Mr. Smith’s phone, the Supreme Court would hear his case.
Howard Cardin, a Baltimore attorney, argued the case for Mr. Smith. Mr. Cardin’s tried to hit home his primary argument that the use of the pen register in this case required a warrant because it “was an action precipitated by the police department – not by the telephone company.”
“We compare it to the situation of a housekeeper coming into a hotel room. On the one instance, if she is coming in performing her duties and comes across something that is one situation,” Mr. Cardin explained.
“On the other hand, if she is contacted by the police department and [told], ‘Why don’t you go into that room for us and see what is there because we suspect something is going on.’ Then she is operating as the agent of the police department and is not properly on the premises at that time,” he followed up.
Mr. Cardin’s oral argument marched on uneventfully for another twenty minutes. In the end, the march was a futile one. He had very few of the Justices lend a helping hand. Instead, Justices Rehnquist and Stevens put Mr. Cardin through the ringer, asking several credulous questions undercutting Mr. Cardin’s oral argument. In short, the oral argument went poorly for Mr. Cardin and, of course, Mr. Smith.
Stephen Sachs, the Attorney General of Maryland at the time, had a much easier go of it in front of the Court.
“[The pen register] hears no sound; captures no words uttered into the mouthpiece . . . ; it captures no content; it achieves no communication . . . ; it doesn’t disclose if the call is completed; it doesn’t reveal who the caller is; it doesn’t say if the number is busy; it doesn’t say who the parties are; and it doesn’t tell the duration of the call,” Mr. Sachs began at the very outset in an attempt to limit the discussion.
In Mr. Cardin’s defense, Mr. Sachs arguably had better case law on his side. Indeed, Mr. Sachs was able to rely on the Court’s earlier cases that explained that a citizen has no reasonable expectation of privacy in information that he gives to a third party – the “misplaced confidence” cases, as Mr. Sachs put it.
Mr. Sachs was put on the ropes for a moment, however, when Chief Justice Burger asserted that the misplaced confidence cases were all cases where the defendant was engaged in criminal activity. In some prospective cases involving pen registers though, Chief Justice Burger explained that the activity might be lawful.
Undeterred, Mr. Sachs kept to criminal investigations using a pen register, “I’m saying, Your Honor, that it’s a risk [a person engaged in criminal activity takes] and its the kind of risk that this Court sanctioned in a great many cases. This Court sanctioned the risk . . . that when you confide in a friend – a trusted confidant – you run the risk that person will later go to the authorities.”
Mr. Sachs then went on to argue that the case had really been decided already my the Court’s prior jurisprudence and, in any event, citizens actually had more privacy in their communications as a result of technological telephone advances.
And then, in a very ironic twist in hindsight, Mr. Sachs addressed concerns “injected” into the case by Mr. Cardin about electronic surveillance.
“The specter of electronic surveillance . . . seems to me misplaced because what we have here is a phone company mechanism that is very much a part of their normal and routine operations that people understand and know are likely to be . . . breached . . . by the phone company which may then go to lawful authorities.”
And with that, Mr. Sachs ended his argument and must have known, when he took his seat, that he had won the day.
The Supreme Court’s Opinion
The impact of Mr. Sach’s argument was immediately apparent in the majority opinion written by Justice Blackmun. The resemblance was so striking that any closer and Justice Blackmun would have been plagiarizing the Attorney General’s argument.
“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,” Justice Blackmun wrote, quoting an earlier opinion.
Justice Blackmun then turned to Mr. Cardin’s various arguments, discarding each in turn. First, he rejected the idea “that people in general entertain any actual expectation of privacy in the numbers they dial.” And, for that same reason, found that Mr. Smith also did not have such an expectation.
Second, he found that even if Mr. Smith did harbor that expectation, his doing so wasn’t objectively reasonable. “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” Justice Blackmun explained.
“This analysis dictates that petitioner can claim no legitimate expectation of privacy here,” Justice Blackmun continued. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”
Just that quick, and Mr. Smith had lost his case. Indeed, it only took the Court six paragraphs to dispense with Mr. Cardin’s arguments. And, with that, the Court issued an opinion that it likely thought was relatively unimportant in the grand scheme of things.
The Third Party Doctrine Three Decades Later
Smith is still the law. There is no contesting that. (Although, there are convincing arguments to be had that the technological facts of Smith are so antiquated compared to today that it should be inapplicable – or, at least, less persuasive.)
Nonetheless, in a recent case, five Justices suggested, without holding, that information shared with third parties can still be private and still protected by the Fourth Amendment. The Court did not go all the way though. But, Justice Sotomayor, citing Smith offered a hopeful glimpse at the future:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.
We shall see.