Long before the cell phone era, Michael Lee Smith was convicted of robbery because he made the mistake of calling his victim from his home for days after. Police in Maryland got the telephone company to use a pen register — a device for recording the numbers called from a specific telephone — to confirm Smith’s calls. That information eventually led to Smith’s identification and conviction.
On appeal, Smith argued that police violated his Fourth Amendment rights by conducting a warrantless search of his phone calls. By a 5-3 vote, the Supreme Court in Smith v. Maryland (1979) rejected his argument. For the majority, Justice Harry A. Blackmun reasoned that phone users have no expectation of privacy — certainly no reasonable expectation of privacy — in the telephone numbers they dial because they voluntarily provide that information to the phone company to make the calls.
Dissenting justices disagreed. “Privacy is not a discrete commodity, possessed absolutely or not at all,” Justice Thurgood Marshall wrote. “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.”
Three decades later, the majority view in Smith remains black-letter law. It explains why police can search your garbage cans, ask a bank for your financial records, or track you down by your cell phone calls – all without a search warrant or anything more than a hunch. But in an important and somewhat overlooked opinion last week [Jan. 23], Justice Sonia Sotomayor urged that this doctrine be reconsidered because it makes no sense (if it ever did) in the digital era.
Sotomayor voiced her view in a concurring opinion in the closely watched case testing the ability of police to use global positioning system (GPS) devices for long-term surveillance of suspects. The court’s unanimous decision in United States v. Jones reversed the drug-trafficking conviction of a Washington, D.C., nightclub owner, Antoine Jones, who was nabbed after a GPS tracking device followed his car to a drug warehouse.
Jones’s good fortune stemmed from a mistake by the joint local-FBI task force working the case. Police got a search warrant to attach the device to Jones’s car, but the warrant was good for 10 days and only in the District of Columbia. Police placed the small device on Jones’s car on the 11th day while it was parked in Maryland. The slip-up forced federal prosecutors to defend the conviction on the premise that police had no valid search warrant.
Judicial concern about high-tech surveillance extended across the ideological spectrum. In oral arguments, Chief Justice John G. Roberts Jr. asked whether police could attach a GPS device to the justices’ cars; Justice Anthony M. Kennedy wondered about surreptitiously stuffing a GPS device into a man’s suit coat. Justice Ruth Bader Ginsburg said the government seemed to be arguing that anyone could be surveilled as soon as one stepped out of one's house.
In the end, all the justices agreed on reversing Jones’s conviction, but they split into two camps on the rationale. Writing for a five-vote majority, Justice Antonin Scalia said the government’s trespass onto Jones’s car for the purpose of gathering information amounted to a search. The Framers would have thought so too, he said. An odd gathering of four justices — the conservative Samuel A. Alito Jr. leading liberals Ginsburg, Stephen G. Breyer, and Elena Kagan— said the government had entrenched on Jones’s reasonable expectation of privacy. Sotomayor joined Scalia’s opinion, but said she agreed with Alito’s too.
The decision drew immediate cheers from civil libertarians. Catherine Crump, director of the ACLU’s speech, technology, and privacy project, said the ruling was “a heartening sign that as technology advances, the Supreme Court will not allow the Fourth Amendment to fall behind.” Jones’s appellate lawyer, the former U.S. solicitor general Walter Dellinger, said the ruling meant that “almost any” law enforcement of GPS surveillance would be questionable without a warrant.
Over time, caution was heard. Tom Goldstein, Supreme Court advocate and publisher of SCOTUSblog, noted that the majority did not state whether – or under what circumstances — a warrant would be required. Warrantless searches are permitted, of course, at times — for example, in an emergency. Goldstein suggested the ruling would have little impact on law enforcement, at least for shorter surveillance. And from a separate perspective he depicted Alito’s opinion as only scratching the surface of the hard question of defining “reasonable expectations of privacy” in the 21st century.
If both main opinions skirted hard questions, Sotomayor took on a harder task by rethinking whether one gives up privacy rights by "voluntarily” disclosing information 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,” Sotomayor wrote.
The Facebook era, of course, has redefined privacy in our social relationships, but that does not mean that every cell phone user, every on-line bank customer, or every Internet surfer has willingly exposed every phone call, every bill-pay, and every Web site visit to government monitoring. Sotomayor may have been a lone voice in raising the issue last week, but her opinion is a clarion call for the Supreme Court to rediscover and redefine privacy in the digital age.
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