Habeas Data_Privacy vs. The Rise of Surveillance Tech

by Cyrus Farivar

  One of the most telling moments during the hearings was when Senator Walter Mondale (D-Minnesota) questioned then NSA deputy director Benson Buffham. Mondale asked if the NSA had considered whether the Huston Plan was legal at the time, to which Buffham replied: “That particular aspect didn’t enter into the discussions.” A moment, later, Mondale asked the same question of Roy Banner, the NSA’s general counsel.

  Banner replied: “I think it was legal in the context of the law at the time,” and further explained that since the Keith ruling, the president could no longer order that a domestic target be wiretapped without a warrant.

  * * *

  The story of Smith v. Maryland began when a woman named Patricia McDonough had just returned to her Baltimore home. It was just after midnight on March 5, 1976, and fog had begun to roll across the city. She spotted a man changing a tire in her neighborhood, but thought nothing of it. As she approached her front door, the man grabbed her from behind, snatching her purse away from her, and fled the scene.

  Soon after, McDonough told Baltimore police officer Kenneth Lucas what her assailant looked like, and described the green bottom and tan top 1975 Chevrolet Monte Carlo that she’d seen earlier. But the robber wasn’t done with her—he began making a series of “threatening and obscene” phone calls to McDonough, and even told her that he was the one who had committed the crime against her. He kept it up.

  At the time, anonymous and bothersome phone calls were something of a scourge on the nation. Making such calls was formally made a crime in New York State in 1960. In April 1965, The Atlantic reported on the phenomenon, describing that “menacing, bizarre, sometimes ludicrous, telephone terrorism is an underground part of the public life of America.” Ordinary people routinely got calls where callers would simply breathe heavily into the receiver, or would proffer unwarranted sexual or hateful remarks. The same article noted that AT&T spokesmen said, “95 percent of the complaints that are received do not prove valid enough for serious investigation.”

  By 1966, the New York Telephone Company set up an Annoyance Call Bureau, as a way to help people (primarily women) deal with the problem. That same year, AT&T (at the time, it controlled 80 percent of the telephone market nationwide) received 586,000 complaints of “abusive or annoying” calls. One common way that telephone companies dealt with this situation was to employ a pen register, which monitors inbound calls, while a “trap and trace” device monitors outbound calls. Today, pen registers and trap and trace (PRTT, or simply pen/trap) devices are often used in combination, or are just referred to simply as a pen register for a singular device that can capture both incoming and outgoing calls. Antiquated as these pen registers are, they ended up playing an enormous role in surveillance law, with serious echoes into our own time.

  In September 1970, William Claerhout, Northwestern Bell’s top lawyer, who previously served as the Iowa attorney general, described the pen register in a law journal article as a mere “mechanical metering device” that was used for “proper customer billing and to maintain good service.” Claerhout lauded the use of the pen register and specifically called out that the 1968 Omnibus act allowed its use. During the first six months of 1970, he indicated that it was helpful to shield Northwestern Bell customers from unwanted calls. After all, customers reported 5,688 complaints in Iowa alone—88 percent of which were classified as “obscene.”

  By 1971, the New York Times reported that nearly 10 million AT&T customers had paid for an unlisted phone number as a way to deal with unwanted calls.

  As a result of McDonough’s complaints, on March 13, 1976, the Baltimore Police Department (BPD) asked Chesapeake and Potomac Telephone Company to install a pen register on McDonough’s line. It would record the phone numbers of all incoming calls.

  The device showed that McDonough was frequently being called from pay phones in the neighborhood. In this way, investigators hoped, they would be able to better ascertain who was harassing her. They were in luck. On March 15, she received yet another call. A man asked her to step outside of her house so that he could observe her, and amazingly, she did so. She watched the Monte Carlo slowly drive past her home.

  The following day, March 16, Officer Lucas was on the lookout for the green car in McDonough’s neighborhood. Incredibly, the driver of that car stopped him, asking for help, as he had locked himself out. Lucas took down the plate number, and eventually determined that it belonged to one Michael Lee Smith. The next day, the BPD asked the phone company to install a pen register to record all calls emanating from Smith’s home. Later that same day, Smith again called his victim.

  With this new information, the BPD got a warrant to search Smith’s car and his apartment. There, authorities found “a page in Smith’s telephone book was turned down; it contained the name and number of the victim.” She positively identified him at police headquarters as part of a lineup on March 19. His age (mid-20s) and appearance (blond hair, average build) matched her memory.

  Smith was formally indicted for robbery on April 6, 1976. By November 1976, his attorney, Howard Cardin, tried to raise the pen register’s legitimacy on a motion to suppress evidence (which was denied). After a brief bench trial, Smith was found guilty and sentenced to six years in prison on March 9, 1977.

  Cardin knew that he had an uphill battle—his only real way to help his client was to challenge the evidence that the government had. After all, everyone agreed as to the basic facts. The remaining question was whether the government’s use of the pen register was, in fact, a search. So, that was the basis of his appeal to the intermediate Maryland Court of Special Appeals, which was filed the next day, March 10. However, in an unusual move, the Maryland Court of Appeals, the state’s highest court, ordered that it hear the case before it had a chance to be adjudicated by the state’s middle court. (Curiously, by the time the court of appeals heard the case, Smith had died, which normally would invalidate a case—with no appellant, there would be no standing.)

  In a 4–3 decision on July 14, 1978, the court of appeals found that because a pen register was not a device that “intercepts” a telephone call, it did not violate the state’s wiretap law, and was not a search. This decision turned on a specific distinction between data and metadata, much as pre-Katz law depended on a narrow understanding of physical intrusion.

  Judge Harry Cole, the first African-American to be elected to the Maryland Senate and to serve on the Maryland Court of Appeals, was one of the judges who dissented.

  “Today no one perhaps notices because only a small, obscure criminal is the victim,” he wrote, quoting a 1971 dissent by Justice William Douglas in United States v. White. “But every person is the victim, for the technology we exalt today is everyman’s master.”

  Judge Cole further explained that his colleagues’ understanding of what a search was remained far too narrow, in his view. It is not the fact that a particular location was examined, or even that a call was intercepted, or items taken. Rather, it is the “gathering of information,” regardless of what form it comes in.

  “Technologically, a distinction between verbal and digital transmissions is absurd,” he continued. “There can be no doubt that the fact that Smith made certain calls from his home telephone is highly relevant information in a criminal prosecution for obscene or annoying phone calls.”

  Judge Cole also made a point of calling out the abuses of Watergate that had been seared in the collective consciousness in recent years, and correctly foresaw what the NSA would do many years later. “If pen register data were fed into a central computer on a widespread basis, patterns of acquaintances and dealings among a substantial group of people would be available to the government,” he concluded.

  But Cole’s view, of course, remained in the minority.

  Three months after the Maryland Court of Appeals’ decision, the Foreign Intelligence Surveillance Act was signed into law on October 25, 1978. The new law was designed to strike a balance between the needs of the government to conduct secret
surveillance, and providing adequate oversight by creating an entirely new court, FISC.

  The FISC, unlike all others nationwide, would have not only secret proceedings, but also (until 2013, after the Snowden revelations) a secret docket. Nearly all of its decisions, opinions, and transcripts still remain hidden. Government lawyers would present their arguments ex parte, or one-sided, to the judges as to why they needed to conduct surveillance on certain targets without anyone presenting a countering viewpoint. (In 2015, as part of a series of modest post-Snowden reforms, there are now standing amici curiae—or friends of the court, who serve as outside advocates for the public interest, but again, due to the secret nature of the court, it is unknown what impact, if any, they have had.)

  In his cert petition to the Supreme Court, Howard Cardin largely reprised many of the same arguments that he had made at the lower courts. On the prosecution side, the arguments fell to Stephen Sachs, who had just been elected as the Maryland attorney general, and was installed in his position in January 1979. Sachs only had months to familiarize himself with the case, and prepare for what was to become one of the highest-profile cases of his career.

  On March 28, 1979, Sachs was driven directly to the Supreme Court by a Maryland state trooper. As the state’s top law enforcement official, he was granted certain privileges—including being driven all the way into the subterranean parking garage, below the court.

  He got out and gathered his things, found the elevator, and made a beeline for the law library on the fourth floor. It was early morning, and he found himself the only person in the entire room. The Supreme Court law library would feel familiar to anyone who has spent time in an academic library. It has warm wood paneling, vaulted ceilings, and ornate carved archways.

  Sachs pulled a wooden chair out and nestled himself against the long, sleek table. He retrieved his handwritten notes and spread them out on the table. But all he could hear was the silent rhythms of the law. The prosecutor knew what he was there to do. The job was to present the arguments that he felt confident about. He was there to take a prominent role in what he called the “secular ritual of arguing before the highest court in the country.”

  Cardin, for his part, arrived by cab with his longtime legal partner, James Gitomer. They did not make a pit stop at the law library, but rather went straight to the counsel’s table. Gitomer had served as Cardin’s argument sparring partner. The defense attorney had invited his recently retired father, Judge Meyer Cardin, to attend the oral arguments—he sat nearby. The younger Cardin was ready. Sachs’ parents, wife, and children were also in the packed courtroom.

  “I may have started in [the] Circuit Court [for] Baltimore City…representing a client, but by the time I got to the Supreme Court, I was championing a cause,” Cardin told me.

  By the time Cardin stepped up to the lectern, he faced a stern Chief Justice Warren Burger, who had been the head of the court since 1969. Some of the justices from Katz remained, including justices William Brennan, Potter Stewart, and Byron White. Justice Thurgood Marshall, one of Baltimore’s most famous sons, who had arrived on the Supreme Court right before Katz was argued, was a veteran.

  Burger, a conservative constructionist judge, had been selected by Nixon to be an ideological counterweight to the liberal Warren Court. Under his tenure, the court oversaw New York Times v. United States (1971), which validated the publication of the Pentagon Papers. Three years later, Burger wrote an 8–0 decision in United States v. Nixon (1974), which struck down Nixon’s claimed executive privilege in communications between the embattled president and his advisors. Nixon resigned his position weeks later.

  The court also featured Justice William Rehnquist, who by that point had been on the court for seven years. Previously he had served as Nixon’s assistant attorney general in the Office of Legal Counsel, from 1969 through 1971, until he was tapped to be a Supreme Court justice. In this position as AAG, in effect, Rehnquist served as the top lawyer for Attorney General John Mitchell. Rehnquist would go on to become chief justice from 1986 until 2005.

  “Mr. Chief Justice and may it please the Court,” Cardin began. “As modern technology brings to society an improved standard of living and new conveniences, it also presents a serious challenge to the personal rights of an individual. This was anticipated many years ago by this Court in dissent when, in Olmstead, it was stated that similar, and far more reaching means of invading privacy, have become available to the government.”

  He had barely gotten three sentences out when Rehnquist jumped in to ask: “Well, actually, your client will be a lot better off if we still had the system where the operator answered when you picked up the phone and said ‘number please,’ wouldn’t it—wouldn’t he?”

  This turned into an extended exchange that ultimately led to Cardin agreeing with the notion that had Smith lived in an earlier period where he voluntarily gave up the numbers he was dialing to a human operator, then at least he would have known that he was doing it. Smith did not expect that the numbers he dialed, even if they were to make harassing phone calls, would be recorded.

  Cardin forcefully argued that the local phone company installed the pen register at the behest of the police—without a court order or warrant of any kind—and captured his client’s information without any legitimate authority.

  “What we’re saying here is to allow an officer on his own, we don’t even know who the officer might be, whether he has investigative background, whether he is high or low within the police department, but to allow anyone just to go ahead and place the pen register would be wrong,” he continued.

  “That there should be some pinpointing of responsibility, and the only way we can do it is to require that there’d be a Court order. As such, there is an accountability, there is supervision. Without it, there is complete decentralization, and decentralization leads to abuse.”

  He also pointed out that modern pen registers could easily be converted to surreptitious wiretaps, simply by plugging in headsets. Without adequate judicial oversight, police could easily abuse their authority without any meaningful consequences.

  The justices seemed skeptical. Then, it was Sachs’ turn to make his arguments. In the audio recording, he seemed to exude confidence, and employed anaphora in his legal rhetoric. Sachs began by explaining to the justices what a pen register was not:

  It captures no words uttered into the mouthpiece, as this Court phrased it in Katz.

  It captures no content. It achieves no communication, other than the limited communication between the user and the phone company itself. It has been defined by Congress, indeed, by its exclusion from the requirements of Title III as not to be a communication. It doesn’t disclose if the call is completed. It doesn’t reveal who the caller is. It doesn’t say if the number was busy. It doesn’t say who the parties are and it doesn’t tell the duration of the call.

  Later on Sachs continued, “We suggest to the Court that the average telephone user probably ought not have a subjective expectation of privacy as to the number called but, in any case, it’s not an expectation that will be recognized for purposes of the Fourth Amendment.”

  Again, he flowed into an anaphoric list of earlier Supreme Court decisions, explaining that like anyone, criminals always run the risk that their transactions, interactions, or conversations will be transmitted to the government in some way. When found out, those criminals always feel that their subjective expectation of privacy has been violated.

  The Supreme Court published its decision less than three months later, on June 20, 1979. The court found, in a 5–3 decision, in favor of Sachs and the State of Maryland. In the majority opinion, which was authored by Justice Blackmun, the justices noted “our lodestar is Katz.”

  He continued:

  In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. 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.” Petitioner’s claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a “legitimate expectation of privacy” that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications.

  In other words, the justices still viewed metadata and content as distinct, with differing legal protections. The decision then spent a little time discussing New York Telephone, and how that law specifically did not consider pen registers an interception.

  Furthermore, the majority found, “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial.” After all, consumers must realize that the phone company has the ability to retain those records, as they receive bills for long-distance calls. But even if Smith did have an “expectation of privacy” in his numbers dialed, society as a whole—according to the two-part Justice Harlan test from Katz, and subsequent rulings—does not recognize a privacy interest in information that he turns over to third parties.

  “This analysis dictates that petitioner can claim no legitimate expectation of privacy here,” the decision continues. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.”

  Decades later this logic carried over to the NSA’s metadata program—essentially that if the police could get three days of one person’s phone records, then the NSA could obtain years’ worth of everyone’s phone records.