It is clear that the Department of Justice and the National Security Agency (NSA) have been collecting the records showing the telephone numbers of every single phone call that you make.  It is not yet clear whether they have been collecting the contents of those phone calls.  Below is an attempt to analyze the argument the government has put forth as their basis for this wholesale collection of numbers.

The only case that has been discussed as possible justification by the government is Smith v. Maryland 442 U.S. 735 (1979).

First, a little background.  Michael Lee Smith robbed a woman in Maryland.  He then began to call and threaten her.  The police identified a license plate on a car that matched the description given by the victim.  This was Smith’s license plate.  The police asked the phone company to install a pen register on Mr. Smith’s phone.  Pen registers are a device that records the phone numbers dialed by a particular device.  They are currently covered under 18 USC § 3121-3127.

This pen register information, along with other information, lead to a search warrant and eventually the arrest of Mr. Smith.  He was convicted and his appeal eventually found its way to the Supreme Court of the United States.

The decision was written by Justice Blackmun.  After reciting the facts, he laid out how the Court approaches questions concerning the 4th amendment.  The opinion was interlaced with cites and references to Katz v. United States, 389 U.S. 347 (1967).  It would be helpful to read the Katz case prior to reading the Smith case.

In Smith, Justice Blackmun held that “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.” Smith, at 740.  This inquiry is broken down into two prongs.  The first prong is “whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361 – whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.”” Smith, at 740.  The second prong “is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as `reasonable,'” id., at 361 – whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.” Smith, at 740.

Justice Blackmun then distinguished the facts in Smith from the facts in Katz.  It was significant to Justice Blackmun that in Smith the police only obtained records of the phone numbers whereas, in Katz, the police recorded the content of the phone calls.  Justice Blackmun went on to express that a person knows that the phone company must use the numbers dialed on a telephone to connect it to another line.  Furthermore, the phone company must retain this information for billing purposes.

Justice Blackmun then ruled that a person has no reasonable expectation of privacy in the numbers dialed from their phone.  This meant that the first prong of the 4th amendment test had not been met and thus the 4th amendment did not protect Mr. Smith’s phone records as held by the phone company.  Justice Blackmun then goes on to broaden the holding stating that a person has no reasonable expectation of privacy in information handed over to third parties.

Interestingly, Justice Blackmun specifically dealt with the issue of changing technology.  He found that equipment used by the phone company was substantially similar to having an operator physically routing the phone call.  The fact that no human actually was receiving the information did not matter as the Court was “not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” Smith, at 745.

After the decision in Smith Congress passed 18 USC § 3121-3127. This statute requires the government to obtain a court order prior to obtaining the records of phone calls from third-party companies.  The application for the court order has to claim that the information taken is relevant to an ongoing criminal investigation.  It is clear that the broad collection of every phone call made in the United States violates this statute.  The government, in its defense of the NSA program, has admitted that they are obtaining the phone numbers prior to knowing whether they will be relevant or not.

Furthermore, 18 USC Chapter 206 § 3121-3127, requires that the order issued by the judge to contain the identity, if known, of the person who is the subject of the criminal investigation.  This order must also contain a statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.  It is clear that the Verizon FISA* order fails to live up to these disclosures.

It is clear from the above analysis that although the wholesale collection of the telephone numbers called by each United States citizen is not a violation of the 4th amendment it is a clear statutory violation.  Your rights come from the Constitution and from statutes passed by Congress.  The Department of Justice does not have the right to collect the information that it has been collecting.

We can find some comfort in the principle that commercial establishments have 4th amendment rights themselves (see New York v. Burger 482 U.S. 691 1987).  Thus, with some exceptions, the companies can stand up to the government.  We should keep this in mind when we try to take away rights from corporations with slogans such as ‘corporations aren’t people.’  But, that is a fight for another day.

The public need for transparency on this issue is clear.  In order for me to trust my records to a phone company I need to know what protections I have from the government and what steps, if any, my company is taking to protect my information from the government.  I hope these recent events will lead to such transparency.

*When looking at the Verizon FISA order you may then question whether the above statute is the proper statute to be referencing in determining the validity of the FISA order.  This is because the Verizon FISA order references 50 USC § 1861 as a justification for its issuance.  This statute references access to certain business records for foreign intelligence and international terrorism investigations.  The reason that I did not analyze this statute is because it is clearly not applicable to phone records of citizens making phone calls wholly within the United States.  Therefore, I have to assume that the government would look to the pen register statute as its justification for collecting phone calls made internally within the United States.