Supreme Court’s Decision in Smith v. Maryland Resurfaces in NSA Spying Debate

The continued relevancy of a 1979 case may play a key role in the ongoing legal challenges to the National Security Agency’s surveillance programs. Smith v. Maryland involved whether the installation and use of a pen register, a device that records the numbers a person dials, constitutes a “search” within the meaning of the Fourth Amendment.

By a vote of 5-3, the Supreme Court held that the government had not infringed on the individual’s reasonable expectation of privacy. However, the federal judge presiding over a current lawsuit against the NSA recently question whether the case is still applicable, given the rapid advances in technology over the past three decades.

On March 5, 1976, Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber.

The police eventually identified the owner of the vehicle in question as Michael Lee Smith. They asked the telephone company to install a pen register at its central offices to record the numbers dialed from the telephone at his home. They did not secure a warrant. The register revealed that a call was placed from Smith’s home to McDonough’s phone, and the police obtained a warrant to search Smith’s house. During the search, police discovered a phone book with the page including McDonough’s name turned down. Smith was subsequently arrested and placed in a line-up where McDonough identified him as the robber.

At trial, Smith sought to suppress all evidence derived from the pen register on the ground that the police had failed to secure a warrant prior to its installation. However, the court held that the warrantless installation of the pen register did not violate the Fourth Amendment. Smith was subsequently convicted and sentenced to six years in prison.

By a vote of 5-3, the Supreme Court ultimately concluded that individuals do not have a reasonable expectation of privacy in the phone numbers they dial.

As explained in the opinion, “First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All 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. All subscribers realize, moreover, 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.”

The majority further held that even if Smith harbored a subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’” The majority further noted that the Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties, which in this case, would be the phone company.

Given the significance of the federal court’s latest decision on the NDA’s current surveillance programs, it is likely that the Supreme Court will be revisiting the Smith v. Maryland decision in the near future. We encourage you to check back for updates.