How a robbery in 1976 robbed US citizens of their privacy in the digital age.
Baltimore - Shortly after midnight on March 5, 1976 Mrs. Patricia Mcdonough was robbed just outside her home. She was able to take a good look at the robber and his 1975 Monte Carlo automobile. A few days after the robbery, Mrs. McDonough started receiving threatening phone calls from the man claiming to be the robber. Mrs. McDonough started recording some of these threatening phone calls and notified the police. On March 13, the police asked the telephone company to install a terminating accounting equipment on Mrs. Donough's telephone line to determine the origin of the calls she was receiving. The police found out that most of the calls were made from pay-phones near McDonough's residence.
On March 16, in the general vicinity of Mrs. McDonough's home, someone asked a police officer for help in opening the locked door of his 1975 Monte Carlo. The officer helped the man, took down his plate# and notified the investigating officer. The police ran the plate # and traced it to a person named Michael Lee Smith.
The next day the police asked the telephone company to install a pen-register at it's central office to record the numbers dialled from Mr. Smith's home. This was done without a warrant. The pen-register allowed the police to crack the case wide-open. The register revealed that on March 17 a call was placed from Mr. Smith's home telephone to Mrs. McDonough's telephone number. This allowed the police to get a search warrant on Mr. Smith's home where they found a phonebook with Mrs. McDonough's number on it. The phonebook was then seized by the police and Mr. Smith arrested. Mrs McDonough then identified Mr. Smith as the robber in a 6 man line-up on March 19. Mr. Smith sought to suppress the information gathered from the pen-register arguing that it was obtained without a warrant. The trial court denied his request stating the installation of the pen-register did not violate his 4th Amendment right. Mr. Smith was convicted and sentenced to 6 years in prison. He appealed his sentence but the court ruled against him stating that there is no constitutionally protected reasonable expectation of privacy in the numbers dialled into a telephone system. Since there is no reasonable expectation of privacy the installation of the pen-register int he central office of the telephone company (not Mr. Smith's home) cannot be considered a search.
Here are excerpts from the court's opinion on the case and how it has shaped the legal landscape governing personal privacy:
What does reasonable expectation of privacy mean?
"This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first 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." Id., at 351. The second question 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."
"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."
This idea that we do not have any reasonable expectation of privacy over data collected and stored by a third party is very pervasive today and very damaging. This concept may have applied in 1976 when our digital interconnection was not as pervasive and ubiquitous as it is today. In 1976 you actually had to knowingly give your data to a third party and the collection process was very obvious and transparent. Today we are generating data in everything we do without us being conscious about it. We click through different websites without knowing that dozens of companies are tracking our activities. Every time we make a call with our smartphones we generate valuable data that can paint a very clear picture of our lives.
When is our data our data?
"The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded or that police intruded into a "constitutionally protected area."
This has been interpreted to mean that since your data is stored by a third-party, you cannot consider it as your own personal property which makes it possible for the government to raid it. This principle is what justifies the authority of government to subpoena records from third-party (ie. bank records, medical records, etc.) Once it goes out of your "constitutionally protected area"the government can go after it if it wants to. This concept has been used by the NSA to justify its surveillance programs like ordering Verizon to hand over telephony records for all its customers.
When you read through some of the dissenting opinion in this case you will be surprised to read that some of them are even more relevant today than in 1976.
"Nevertheless, the 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 [442 U.S. 735, 747] 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 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."
"Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. "
"Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications...It is idle to speak of "assuming" risks in contexts where, as a practical mater, individuals have no realistic alternative."
This is a very important dissent - if the government says we do not have any reasonable expectation of privacy to information we share with third-parties, it needs to look at the notion of choice. Do we have a choice to keep our information private while still using the service offered by third-parties? In today's digital age, do we have a choice to stay unplugged? Do we have a choice on how our information is being used? These are questions that have gained more importance in today's age and should be factored in assessing privacy expectations.
"Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts."
This cuts to the heart of the issue. The NSA and its supporters have always said - if you have nothing to hide then you have nothing to worry about in government surveillance. This reasoning is flawed in its core. The right to privacy is accorded not only to those with something to hide but to everyone. Unjustified and un-checked government surveillance does not shine light on the dark corners of our society but envelopes us all in a shroud of darkness and uncertainty.
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