The Erosion of Smith v. Maryland

Case Western Reserve Law Review Volume 70 Issue 2 Article 14 2019 The Erosion of Smith v. Maryland Geneva Ramirez Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Geneva Ramirez, The Erosion of Smith v. Maryland, 70 Case W. Res. L. Rev. 489 (2019) Available at: https://scholarlycommons.law.case.edu/caselrev/vol70/iss2/14 This Comments is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 70·Issue 2·2019 — Comment — The Erosion of Smith v. Maryland Contents Introduction .................................................................................. 489 I. Smith v. Maryland ...................................................................... 491 A. The Facts ............................................................................................. 491 B. The Supreme Court’s Majority Opinion .............................................. 493 C. The Supreme Court Dissenting Opinions ............................................. 496 1. Justice Stewart ................................................................................ 496 2. Justice Marshall .............................................................................. 497 II. The Eroding Basis of Smith ...................................................... 499 A. The Subjective Expectation .................................................................. 499 B. The Objective Expectation ................................................................... 503 1. The Nature of the Challenged Activity ........................................... 503 2. The Third-Party Doctrine ............................................................... 508 Conclusion ...................................................................................... 510 Introduction In 1979, the Supreme Court held in Smith v. Maryland1 that individuals do not have a reasonable expectation of privacy in the telephone numbers they dial.2 So the Fourth Amendment did not apply when the government requested that Smith’s telephone company use a pen register to record all of the outgoing numbers dialed from his phone.3 The Court justified its decision by emphasizing that pen reg– isters were simple mechanical devices with limited functions, recording only the telephone numbers dialed from the particular landline to which a register was attached.4 But today, pen registers are not so limited. In fact, the term no longer refers to a particular device but to any “device or process which records or decodes dialing . . . information,”5 including outgoing tele– phone numbers, the date, time, and length of calls.6 Even in 1979, it 1. 442 U.S. 735 (1979). 2. Id. at 745–46. 3. Id. 4. Id. at 741–43. 5. 18 U.S.C. § 3127(3) (2012). 6. See John T. Nockleby, Privacy in Cyberspace: Modules I & IV, Harv. L. Sch.: Berkman Ctr. for Internet & Soc’y (2002), https://cyber.harvard 489 Case Western Reserve Law Review·Volume 70·Issue 2·2019 The Erosion of Smith v. Maryland was easy to infer private information from a list of telephone numbers because “phone numbers are unique to their owners.”7 Simply by using a telephone directory, phone numbers can be matched to their owners to reveal who a person was calling. The receiving party could be a friend, an addiction resource hotline, a church, or a political organ– ization. And by identifying each of these recipients, private information can be inferred about the caller.8 These limited inferences mean that telephone numbers are not just telephone numbers as the Smith Court suggested. This is even more true today. With the development of inexpensive data storage and datamining technology, the inferences to be drawn from aggregated telephony metadata can often serve as a costeffective proxy for the content of the conversations themselves.9 In Carpenter v. United States,10 the Supreme Court recognized the threat to privacy posed when the government is permitted to amass and analyze large amounts of metadata about an individual.11 It held that the Fourth Amendment applies when the government seeks to acquire at least one week’s worth of an individual’s cell site location information (“CSLI”)12—location metadata automatically generated by dint of a cell phone’s operation and stored by cell-service providers for business purposes.13 The analysis in Carpenter marks a shift in the Court’s understanding of how the Fourth Amendment applies in the context of digital metadata to protect against “too permeating police surveillance.”14 Although aggregated telephony and location metadata can often be analyzed to yield similar (if not the same) private information, the .edu/privacy/ [https://perma.cc/XJS3-MHYX]. 7. Supplemental Declaration of Professor Edward W. Felten at 2, ACLU v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) (No. 13-3994). 8. Declaration of Professor Edward W. Felten at 14, ACLU, 959 F. Supp. 2d 724 (No. 13-3994). 9. Id. In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court established that the contents of an individual’s private conversation are subject to the Fourth Amendment’s protection: “The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at 353. 10. 138 S. Ct. 2206 (2018). 11. Id. at 2217–18. 12. Id. at 2217 n.3, 2220. 13. Id. at 2211–12. 14. Id. at 2214 (quoting United States v. Di Re, 332 U.S. 581, 595 (1948)). 490 Case Western Reserve Law Review·Volume 70·Issue 2·2019 The Erosion of Smith v. Maryland Supreme Court insists that Smith is still good law.15 This Comment analyzes how, despite the Court’s protestations, technological develop– ments and changes in the Supreme Court’s understanding of the Fourth Amendment, as illustrated by Carpenter, have undermined and eroded the reasoning on which Smith was founded. Part I provides a detailed overview of the facts and the majority and dissenting opinions of Smith v. Maryland. Part II describes how the technology surrounding the acquisition and use of telephony metadata has changed in the forty years since Smith was decided and compares the Court’s reasoning in Carpenter and Smith. Allowing the government unfettered access to telephony metadata in 1979 had drastically different privacy impli– cations than allowing that same access today. Therefore, this Comment concludes that the same protections provided to CSLI in Carpenter should be extended to Smith’s telephony metadata. I. Smith v. Maryland A. The Facts In 1976, as (...truncated)