I was backpacking through Europe, having just been handed a college diploma, facing a haircut and future of misery in law school. Lawprof Steve Vladeck had yet to be born. Justice Harry Blackmun wrote an opinion that, even then, was edgy and controversial, Smith v. Maryland.
Technology allowed the government to wiretap our telephones, to listen in to our private conversations, and it was troubling. Back then, there was a very firm, very clear appreciation of privacy, and the idea that law enforcement could listen in bordered on shocking. Statutes were enacted to strictly limit the use of eavesdropping. Not only was a warrant required, but the ancillary requirements were strict, and the government was expressly required to strictly adhere to them. There was no fudging around the edges of a Title III warrant.
Another technology also came into play. Originally called a “trap and trace device,” it later became known as a pen register. Its capacity was limited to capturing the telephone number called or calling in.
There was no “search” in the first place, they said, because when he signed up with his phone company he agreed to let it record his location, and he couldn’t reasonably expect the information to remain private. That reasoning, known as the third-party doctrine, comes from a 1979 Supreme Court decision, when people made calls on rotary-dial phones and did their research in the Yellow Pages.
There were still rotary dial phones around, but most used push buttons by ’79. Back then, the telephone company kept track of every number, and everyone knew it did. While one price was paid monthly for local calls, long distance calls (meaning every call outside your local calling area) was separately charged by length of call. It was expensive, and we limited calls to avoid paying big bills. Telephone was an expensive proposition then, though the sound was far better than it is today.
The question raised in Smith v. Maryland was controversial at the time, whether the government should be capable of sticking their nose into any of our private telephone information at all, as we were still pretty protective of privacy. This was long before we gave away our private information to anyone who asked. But the decision reflected the confluence of circumstances, the claimed need to unearth nefarious criminals, the limits of a pen register and the conceded fact that the telephone company knew all this information anyway,
The Court manufactured the exception to Katz’s “reasonable expectation of privacy” rule out of whole cloth. The third-party doctrine, as it was called, was of stunning breadth, but informed by the sensibilities of the summer of ’79. Who could have foreseen the future of technology, computers, cellphones, smartphones? Had the Court realized how tech and telephone billing practices would develop, would the same exception have emerged?
I’ve been very critical of the third-party doctrine over the years, even going as far as proffering an alternative rule, despite Orin Kerr’s attempt to outsnark me. The balance of sensibilities that gave rise to the third-party doctrine in the summer of ’79 had long since given way to a technological reality that made the exception untenable. Back then, this shift would have been an entirely unacceptable intrusion into our privacy.
There is no reason why anyone at the telephone companies today would need to take a look at our bill, call by call, number by number, minutes and billable seconds, as they did in ’79. Now, it’s just a morass of data, part of an unlimited calling plan where the concept of a long distance call is extinct.
The only people who might peer into our private world work for the government looking for something we did wrong. Harry Blackmun wouldn’t have believed that would happen, for it he did, Smith v. Maryland would have come out the other way. The Supreme Court has the chance to correct this in Carpenter v. United States. The third-party doctrine was an exception of its day. a stark reminder that rules of law built on transient sensibilities can wreak havoc when times and feelings change.