0:00:00.0 Warren Burger: Case is submitted. We'll hear arguments next in Smith against Maryland.

[music]

0:00:07.9 Leon Neyfakh: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are discussing Smith v. Maryland, a case from 1979 about phone surveillance.

0:00:20.8 Howard Cardin: Modern technology has now permitted the telephone company to give a better service. In so doing, it has also permitted the police department to use more sophisticated means of invading privacy, if you will.

0:00:39.4 Leon Neyfakh: In this case, the court held that police don't need a warrant to track who you call because, after all, you willingly shared that information with the phone company. The decision is premised on the third-party doctrine, an idea that conservatives in the court have been using ever since to clear the way for new forms of surveillance. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:05.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have filled America's shoes with pebbles of injustice. I am Peter, and I'm here with Michael.

0:01:18.5 Michael: [chuckle] Hey, everybody.

0:01:19.9 Peter: And Rhiannon.

0:01:20.8 Rhiannon: Hello, my Habibis.

[chuckle]

0:01:23.0 Peter: I am obligated to tell you that my girlfriend helped come up with that one... That metaphor.

0:01:28.7 Michael: It's good, it's good.

0:01:29.8 Peter: She came up with a few for me, and then she said that I have to give her credit every time on air.

0:01:34.3 Rhiannon: Shout-out, we love that.

0:01:35.6 Michael: Yeah, we love the shout-outs.

[laughter]

0:01:39.7 Peter: Rhiannon, you're fresh back from Jordan. How does it feel?

0:01:43.7 Rhiannon: It feels very, very hazy. It feels very jet laggy over here in this closet. But yeah, I had a blast. I missed you guys.

0:01:52.2 Michael: We missed you.

0:01:53.1 Peter: Absolutely.

0:01:53.6 Michael: It must feel good to shrug off the yoke of oppression.

0:01:57.0 Peter: Yeah, back in the land of the free.

0:01:58.7 Michael: That's right.

[laughter]

0:02:02.4 Rhiannon: I... The second I was in an American airport, I was like, "God, this sucks." [laughter] It's just so much worse than everywhere else. [laughter]

0:02:14.1 Peter: Okay, but you weren't saying that when you passed Arby's three times on your drive from the airport to your house. Today's case is Smith v. Maryland. This is a seminal case from 1979 about what information the police are allowed to gather about you without a warrant. In this case, the police suspected a guy named Michael Lee Smith of committing a robbery and then harassing his victim with phone calls after the fact. So the cops, without a warrant, go to the local phone company, and they have the company install a device that tracks who Smith is calling. And the question is, did they need a warrant? The Supreme Court, in a 5-3 decision written by Harry Blackmun, says no, they didn't need a warrant, because people shouldn't expect information about who they are calling to be private.

0:03:11.8 Peter: This case is illustrative of one of the most egregiously cop-friendly doctrines in American law, the third-party doctrine. The third-party doctrine is a rule more or less made up by the Supreme Court that says if you voluntarily disclose information to a third party, you have no constitutional right to the privacy of that information. At the time of this decision, the implications of this might have seemed at least somewhat limited, but now, in a world where the disclosure of information to third parties is something we all do multiple times a day, what we're really talking about is a loophole that can and has been exploited to give the government access to huge amounts of citizens' private information. So Rhi, let's get some background here, let's get going.

0:04:00.7 Rhiannon: Sure thing. This case comes out of a robbery, like Peter mentioned, that happened in 1970s Baltimore, we're in Maryland. Yeah, it's... This case is really just basically a purse snatching, and it would be a sort of dark comedy, dumb sitcom story about crime in the 1970s if it didn't become the legal basis for mass surveillance in the United States. So, [laughter] it's a pretty simple set of facts. The year is 1976. Now, you guys know I like to set the scene sometimes by looking at what people were watching or listening to at the time that these cases are happening. So, top songs in the US in 1976 were Play That Funky Music by Wild Cherry.

0:04:52.0 Michael: Fuck yeah.

0:04:53.1 Rhiannon: Shake Your Booty. "Shake, shake, shake." That one, by KC and The Sunshine Band, and Afternoon Delight by Starland Vocal Band.

0:05:02.0 Michael: Hell yeah.

0:05:02.6 Peter: Hell yeah, what a year.

[laughter]

0:05:05.3 Michael: Can we get one of these for our break? [chuckle]

0:05:07.6 Rhiannon: Do you guys think people actually got down to Afternoon Delight?

0:05:11.6 Peter: No.

0:05:12.3 Michael: It was the '70s, man. [laughter] There were a lotta drugs flying around, a lotta free love.

0:05:19.8 Rhiannon: That's true.

0:05:20.6 Michael: I wouldn't be surprised.

0:05:21.8 Rhiannon: [laughter] Alright, so one day, in March of 1976, Patricia McDonough gets robbed; she has her purse stolen. And Patricia calls the police, and she gives them a description of the guy who robbed her, and she also says that he was driving a 1975 Monte Carlo. Now, inside Patricia's purse somewhere was her address, her name, so that meant that the guy who robbed her was able to look her up in the phonebook and get her phone number. So after the robbery, Patricia started receiving kinda gross threatening phone calls from the guy. He couldn't have just stolen her purse, he also had to be a fucking weird little gremlin about it. So he's calling her and harassing her.

0:06:04.9 Peter: Yeah, we were talking about this in prep, and... This is a big 1970s thing, right? I was watching a documentary on the Golden State killer, and he did this, where he would break into the home and commit some heinous crimes, and then, a couple days later, be like, "I'm gonna call them too."

[laughter]

0:06:22.5 Rhiannon: Right, right, right.

0:06:23.9 Peter: And repeatedly do it, and the cops were just like, "How are we gonna stop this guy?"

[laughter]

0:06:29.1 Rhiannon: Right, just was scratching their head.

0:06:31.5 Peter: They're just leaving piles of evidence everywhere, making phone calls to the place that they robbed, and getting away with all of it. We busted that guy in 2018. That...

[laughter]

0:06:42.8 Rhiannon: Right. So, about 10 days after the robbery, police, they see a guy who matches the description that Patricia gave, and he's driving a Monte Carlo in this same neighborhood where the purse snatching happened. So, they traced the license plate number on the car, and they find that it's registered to Michael Lee Smith. So, the next step the police take is to go down to the telephone company, like Peter said, and they have the telephone company install what's called a pen register for Michael Smith's home telephone line. A pen register is a device, and now, probably, this is a mechanical anachronism in telecommunications, but it's a device that records the phone numbers that are dialed from a certain telephone. So importantly, police do not get a warrant for this, so they are able to see all of the phone numbers that Michael Smith is calling from his home phone, but they have not gotten a judge's approval that this is okay under the Constitution. They just did it. So, the day after the pen register is installed on Michael Smith's phone line, police see that he places a call to Patricia McDonough's number. So before this, they just had... [laughter]

0:07:55.4 Michael: It's just...

0:07:55.8 Rhiannon: Yes, Michael? [laughter]

0:07:56.3 Michael: It's just so much.

0:07:58.1 Rhiannon: It's so much what?

0:07:59.4 Michael: This guy...

0:08:00.3 Peter: Why is he stunting... It's not like he did... Alright, the Golden State killer...

[laughter]

0:08:06.0 Peter: He would commit these heinous crimes, like rape someone, and then call them, right? And yeah, that's the thing is that, that is mentally torturous, right?

0:08:14.6 Rhiannon: Sure, right.

0:08:15.1 Peter: All this dude did was jack her purse. And like what, he's calling her to taunt her about it? What'd you steal, $40 worth of shit?

0:08:23.5 Rhiannon: Yes, and he also drove by her house...

0:08:25.3 Michael: In case you didn't get a good look at my car last time, here's another look, maybe you'll get the plates this time. Unbelievable. Unreal. Sorry.

0:08:36.8 Rhiannon: Real dumb criminal shit. Yeah, for sure. [chuckle] So, before the installation of the pen register device, police just had the physical description of the guy and the description of the car that he drives. But now that they have the pen register installed, they also have that this man is placing calls to Patricia, just like she complained about. So, this is pretty open and shut; this is the guy who did this. So, Smith is arrested and files a motion to suppress the evidence of the phone call, saying that his Fourth Amendment rights had been violated when police had the pen register installed to his phone line without a warrant. So Smith argued that the installation of the pen register was a search of his person or property, and therefore, it should fall under the Fourth Amendment protections. But, lower courts disagreed with him, and this gets appealed all the way up to the Supreme Court to decide.

0:09:33.3 Peter: Yeah, so let's talk about the law a little bit. This is a Fourth Amendment issue. The Fourth Amendment protects against unreasonable searches and seizures, and that means that for cops to conduct a search, they generally need a warrant. So the question here is whether installing the pen register device to track Smith's outgoing calls is a search. And the legal test is that something is a search if the person has a "reasonable expectation of privacy" in the information in question. So if you should reasonably expect something to be private, the police need a warrant to have access to it. And the key case here is a case from 1967 called Katz v. United States. It was a case where the feds had bugged a public phone booth in order to listen to a man that they suspected of running a gambling racket. In that case, the court said, "Sorry, piggies, you need a warrant for that, because people have a reasonable expectation that their phone conversation in a public booth will be private."

0:10:38.9 Rhiannon: Right.

0:10:39.2 Michael: Right. And so Katz was sort of like a watershed case. Up until that point, the Fourth Amendment was very much focused on property and trespass. And there's some textual support for that, like the Fourth Amendment literally says it's the right of the people to be secure in their persons, houses, papers, and effects. So it's got a focus on property and being secure in your property, and the main case on point in English Common Law, Entick v. Carrington, talked about trespass and property. And so, that was sort of the state of the law until Katz, and there had been a previous wiretapping case called Olmstead v. Some shit or other.

0:11:23.5 Rhiannon: That's right, yeah. [chuckle]

0:11:25.6 Michael: Where there was no trespass involved because the recording didn't take place in the target's house, it happened at the phone company or on a telephone wire or something like that. And so the court said, "Hey, there's no search here under the Fourth Amendment because it's not touching your person or your papers and effects or whatever." And so Katz said, "You know what? That's not really enough." And it added this idea of expectations of privacy, and it's not just about property, that the Fourth Amendment, sort of famously, what they say is it protects people, not things, not places. And so, the cops can't just skirt around that by being sneaky as to where they place their recording devices and things like that.

0:12:10.9 Peter: Right. So... After that case, after Katz, the conservatives on the court are not particularly happy that the scope of Fourth Amendment protection has come to be so broad. Crime is pushing upward in the '70s, there are many political and legal actors pushing for broader police powers. And the court obliges them, and in the mid-'70s, creates what is called the third-party doctrine, which I mentioned up top, which is the idea that if you voluntarily disclose information to a third party, you do not have a reasonable expectation of privacy in that information.

0:12:46.2 Peter: So the question here is, does Smith have a reasonable expectation that the phone numbers he called would be private? And the court, with the majority again written by Justice Harry Blackmun, says that Smith didn't have a reasonable expectation of privacy. And the main reason that Blackmun gives, as he says, "Just about anyone would know that the phone company has access to this information, and so you can't expect it to be private, and therefore, cops don't need a warrant." Blackmun says that Smith "exposed" the information to the telephone company by making the calls, and therefore, he assumed the risk that the telephone company would hand that information over to the police. I guess my first instinct when I read this case was like, "This is just such a clear-cut, 'could have gotten a warrant' situation," right?

0:13:37.6 Rhiannon: Yes, yeah, yeah.

0:13:37.7 Michael: Yeah, absolutely.

0:13:39.2 Peter: They had the... The guy matched the description, he's in the car, he's driving around the neighborhood, just get the fucking warrant.

0:13:46.0 Rhiannon: Right, that's enough.

0:13:46.4 Peter: Just get the fucking warrant. Why do you need this extra piece of information at this point?

0:13:50.7 Michael: Right. They know this guy's name because they had the license plate, they're later on able to get a positive identification from Patricia... This was so unnecessary. And the other thing I kept thinking about was... I'm not fluent in the technological capabilities of 1970s phone companies, but I refuse to believe it was impossible for them to do this with a focus on Patricia's phone, rather than...

0:14:17.9 Rhiannon: Right, her incoming calls. Yeah. Yeah.

0:14:19.1 Michael: Her incoming calls, which she would've consented to. Just say, "Hey, we wanna get a list of everyone that calls you for the next 10 days, 'cause this guy's harassing you, and you tell us when he calls, and we'll look at the list, and we'll have the phone number." And then there's absolutely no question that that's legal, that she's consenting to this. And I guess... The last point, in terms of this being police overreach, is they could have fucking made the case without this shit too! You have enough, even if it gets thrown out of court! You have enough. But that's the thing; it's almost purposefully pushing the boundaries, like, "We should be able to do whatever we want. We should be able to record all this shit about this guy's activity without a warrant."

0:15:06.5 Peter: Yeah. And there's... What keeps lurking in a case like this is just... We're not advocating for every criminal... Like this just gets away with it. There are clear paths for the cops to get where they got without violating anyone's rights. Clear paths. They're just choosing to go the path of what to them is the path of least resistance, which is just to get information whatever... However they deem fit.

0:15:32.9 Rhiannon: Exactly.

0:15:34.0 Peter: So, one thing that Blackmun says is that because the phone company has access to this information, you can't expect the information to be private. But that, to me, seems to misunderstand what a reasonable expectation of privacy actually is. Just because they have access at the phone company to the numbers you're calling doesn't mean you would expect them to be monitoring it. If you keep a diary in your dresser drawer, someone in your family might have access to it. Does that mean you shouldn't expect it to be private? That's what Blackmun is effectively saying here. So think about this case. The information in question is the phone numbers being called by Mr. Smith. It's not like that information is sitting on a piece of paper at the phone company. The phone company needed to install a device on his line to even locate the information. Before the cops ask them to do that, it's not even correct to say that the information is in the phone company's possession. So what needs to happen for someone to access that information is they need to go to the phone company, identify you specifically, install a device on your line, and pull the data from that device. Is it really unreasonable to expect that that wouldn't happen? In fact, it seems, based on that course of events, it probably almost never happens. So why can't someone reasonably expect that that information would be private?

0:16:56.0 Rhiannon: Right, exactly. And if you're thinking about the Fourth Amendment as protecting information, as protecting a person rather than just items or pieces of property, like Michael said, the police would not be able to just come up to you and ask those questions of you without something more than just a suspicion. They can't come up to you and say, "Identify yourself and tell us all of the phone numbers that you've been calling in the past week." And so, if you're thinking about the Fourth Amendment as protecting the person, then it's a lot easier to sort of conceptualize that this stuff that actually might be accessible by a third party is still private information that people reasonably believe would remain private.

0:17:40.2 Michael: Right, and going back to Katz for a second, the case with the wiretapped phone booth, obviously, police can access the content of your calls too, right?

0:17:50.7 Rhiannon: Right, yes.

0:17:51.3 Michael: And yet, we nonetheless have a reasonable expectation of privacy in the content of that call, such that it requires a warrant for police to record them. And that seems to be even stronger in the privacy of your home than it would be in a telephone booth. And so, I just have a hard time distinguishing between this type of information, and it just seems to be the conservatives just sort of saying, "Well, you know what, we decide what's reasonable, and we've decided this isn't reasonable because we're fucking statist pigs." With apologies to Harry Blackmun who we've praised before, but they all suck.

0:18:30.3 Peter: Yeah.

0:18:31.0 Michael: No robes, no masters, baby.

0:18:32.4 Rhiannon: That's right.

0:18:32.8 Peter: He drifted left. He got cooler as he got older.

0:18:35.2 Michael: Yeah.

0:18:35.8 Rhiannon: Yeah, yeah, that's right, and he just got it wrong this time, clearly, yeah.

0:18:38.8 Peter: Yeah, and... I think this sort of gets to the heart of what is wrong with the third-party doctrine. So the third-party doctrine, as we mentioned, is this idea made up by the conservative court in the '70s that if you disclose information to a third party, you no longer have a reasonable expectation that the information is private, and so the cops can just get that information without a warrant. And I think that just misconstrues what privacy actually is, and when and why we expect it. The doctrine treats privacy as a binary thing. Either something is private, or you share it with someone and therefore it's public. But that's a false dichotomy. That's not how privacy actually functions in real life; that's not how anyone conceptualizes privacy.

0:19:20.3 Michael: That's right.

0:19:20.9 Peter: People can and frequently do convey information to a third party while believing that the information will be kept private to varying degrees, right?

0:19:28.4 Michael: Mm-hmm.

0:19:28.8 Peter: J.Crew knows my fucking credit card number. Does that mean it's not private information? Of course not. Of course it's private. The court is asking the wrong question, I think. The question they're asking is whether a person would expect the information to be kept private in a general sense, but the real question is whether they'd expect the information to be kept private from the government. In other words, does the person have any reason to believe that the government would have access to this information? If not, then get a fucking warrant. I think that's the bottom line. The implication that by agreeing to give information to a third party, you're tacitly agreeing to give it to the government is a huge leap. That's an incredibly silly, almost childish view of privacy, and yet atop that concept is laid an enormous segment of our criminal laws.

0:20:19.8 Michael: Yeah, and so... It's hard not to look at this as just one of the many ways that all the gains made under the Warren Court in the '50s and '60s were eroded in the following decades. Katz was such an important decision to expand our privacy against the government, and the first thing the conservatives did was start hacking away at that, which, we'll talk about later, ends up blossoming into the beautiful flower of mass surveillance and a pseudo-police state, baby. Yeah.

[laughter]

0:20:57.6 Rhiannon: Yeah, that's exactly right, and I go back on these cases and just wonder why you are not taught in law school about that historical context. I just don't think that you are learning fully what third-party doctrine means when all you learn about Smith v. Maryland in law school is, "This is what third-party doctrine means." Just the definition that, as Peter has stated, if you turn over information to a third party, then you no longer have a reasonable expectation of privacy, but why? I took multiple criminal procedure courses in law school; I was obviously on this crim law public defense track. Nobody ever said, not a single professor ever said, it's a new court with new conservatives, they are trying to limit the gains made in civil rights and other constitutional rights that were made in the Warren Court era, and what the real world implications are of this decision. Yes, it's a purse-snatching case, they got the guy, he went to prison, good job, pigs. But what it means in terms of the justices' short-sightedness on technological advancements and police power, for what police would be able to do with this ruling, you just... You're not taught it in law school.

0:22:19.8 Peter: Yeah. It's just, you're taught a lot of things in law school as if you're being taught facts about what the law is rather than the story of how the law developed. In this case, Thurgood Marshall files one of two dissents, and his dissent is just "The third-party doctrine shouldn't exist. This is stupid."

0:22:36.8 Rhiannon: Right, yeah, this is bad.

0:22:38.5 Peter: I never learned about that dissent, even though I learned this case. And it's sort of like... Reading through it, just transparently, the right position... It's strong. The majority barely addresses that dissent. They're sort of like acting like the third-party doctrine is set in stone, when in fact, this is the second Supreme Court case that even mentions it. It's just like... What the fuck? And now here we are, fucking 40 years later, and it's black letter law as far as law students are concerned. It's ridiculous.

0:23:08.1 Rhiannon: Yeah, and I just wanted to add that we can look back and say, "Okay, well, what they were talking about at the time was pen registers, right?" This is not technologically advanced, the Supreme Court Justices at the time could not have predicted or foreseen that the government would have the mass surveillance capability that it does now, with advancements in technology, but they knew. I was reading about the case, obviously in preparation for the episode, and the lower courts, before the Supreme Court in this case, they also ruled against Mr. Smith and said that this was not a search under the Fourth Amendment. But there was a dissenting judge, Harry Cole, in the Maryland court, and in his dissent, he says, "The majority fails to give due weight to the impact of Watergate and its progeny. The recent revelations of illicit surveillance conducted by the FBI upon civil rights, labor, and political leaders, or the potential abuse to which the pen register may be put by police. Society awaits the forces of good to restore the basic right of privacy, which has been steadily eroded. And for the Fourth Amendment to remain viable, it must adjust to the times and afford protection against new forms of invasions of privacy."

0:24:23.2 Rhiannon: So yeah, the pen register is a sort of mechanical or technological anachronism now, but they knew, even at that time, what police are always going to do, which is going to push the boundaries and come up with new ways to violate our rights, and it shouldn't have been done then, and they can't use the excuse that they just didn't know.

0:24:43.1 Michael: Yeah. Several years earlier, in dissent, Douglas had said, this is a quote, "Uncontrolled electronic surveillance promises to lead us into a police state."

0:24:52.4 Rhiannon: Yes.

0:24:52.7 Michael: "And it kills free discourse and spontaneous utterances."

0:24:56.9 Rhiannon: Period.

0:24:57.7 Michael: So... Yeah, it's not like this was like... The implications were just unforeseeable or unforeseen.

0:25:04.6 Peter: Right. Katz is 1967; that's a wire tapping case that itself makes its way to the Supreme Court. Watergate, a few years later, is the focus of national attention, so every single person who's conscious in the country knows about wiretapping and what it's capable of. They don't really have an excuse.

0:25:22.8 Michael: Yeah. One thing that Marshall says in dissent that I think is just kinda funny, in a way that it just sorta quietly destroys Blackmun's opinion in the footnote, Blackmun, one of the things he relies on is that, in the phone books, there are a lotta ads that say the phone company can help you figure out who's calling if somebody is harassing you. And Marshall drops this footnote, he's just like, "I don't know, I apparently don't read the phone book as in detail as Blackmun. They're not page turners. I'm not going through them."

0:25:58.9 Rhiannon: He's like, "You fucking nerd." Yeah! [laughter]

0:26:01.7 Michael: Yeah! When I read Blackmun's opinion in law school, it kind of like... Sorta holds together if you don't think about it too critically, but then you read something like that and you're like, "Yeah, this shit's stupid. What they're saying is just dumb." [chuckle]

0:26:17.6 Peter: Alright, let's take a break, and then we will get into what we've been dancing around for a little bit here, the implications of this decision in light of modern technology.

0:26:27.9 Michael: Hopefully, we can afford, although I doubt it, to play that funky music during this break.

[laughter]

[pause]

0:26:39.6 Peter: Alright, we're back. So let's talk about what this decision means for us today. Maybe the most disconcerting aspect of this case is how it maps onto modern technology. If the rule is that you forfeit your right to privacy when you share information with a third party, that's pretty bad news for American citizens in 2021. You share information with third parties all the time. Anyone who's seen targeted ads on the internet knows that the amount of information being collected by and shared with third parties is enormous. You agree to some terms and conditions that absolutely no one reads in some click-wrap agreement, and with that, you're sharing information about your shopping habits, your news consumption, your political views... Your ISP has access to every single thing you do on the internet, and according to the logic of this decision, that means that the government can access that information without a warrant. And there's no real choice being presented to the average citizen. You can either participate in the use of modern technology and accept that Facebook and Apple and Roku are swimming in your personal information, or you can retreat to the woods and wait for the collapse. Those are your two options.

0:27:55.1 Peter: In 1979, the implications of giving cops the free use of a pen register might not have seemed too significant to the decrepit academics on the court, although, as we mentioned, some of them were aware of it at the very least, and they should have been aware of it. But any honest person now should be able to see that the consequences here are pretty dire. Under this decision, the scope of the government's warrantless access to your personal data and information is almost limitless.

0:28:25.7 Michael: That's right. So, it is worth talking a little bit about legislative and judicial happenings since then. [chuckle] The first thing to note is that in the '80s, Congress did pass something called the Pen Register Act, which did impose a warrant requirement on using these pen registers, but the warrant... Since the warrants don't have to comply with the Fourth Amendment under this decision, the warrant only required showing that using the pen register would be "relevant" to an ongoing investigation, which is a very, very lax requirement.

0:29:02.5 Rhiannon: Yeah, that's a low standard.

0:29:03.5 Peter: Which would have not changed this case in the slightest, right?

0:29:06.3 Michael: Right, right. And that got worse after 9/11, with the PATRIOT Act, which sort of blew this whole thing up and made it very easy for the government to collect bulk telephony metadata is the technical term. I don't know why I always like that. But it led it to a system in which the government was literally, on a daily basis, collecting all telephone metadata from every cell carrier, keeping it in a database, which they required a warrant to search, but the warrant, again, had a very lax requirement of just showing that it was relevant to an ongoing... For an investigation or something along those lines. And then, what they would get from that was insane. You'd get five years of telephone records for the person you put in, and then you'd get five years of telephone records for everyone that person called, and then you'd get five years of telephone records for every one of those people.

0:30:15.4 Rhiannon: That is wild.

0:30:16.2 Peter: What kinda fucking pyramid scheme shit is this?

0:30:18.0 Rhiannon: Yeah, yeah, exactly.

0:30:19.7 Michael: If you imagine, I don't know, maybe you call a hundred numbers over a five-year period, I don't think that's a crazy amount, that gets you a million numbers.

0:30:28.0 Rhiannon: Wow!

0:30:28.6 Michael: [chuckle] That is a closed universe of communications that the government can then analyze for networks; it's so far reaching, without any judicial oversight. So that was the post-9/11 status until 2015, when it got pared down a little. There were privacy concerns, obviously, there was the whole Snowden leaks and all that, and people got upset. So the new rule was that the government can no longer just bulk collect, on a daily basis, all that information, and they would have to request specific person information from the companies, and they would only get two hops instead of three, and blah blah blah, but it's still... It's not great. It's not great.

0:31:15.3 Peter: And that's why the federal government formally thanked Edward Snowden for protecting our democracy and our Constitution.

[laughter]

0:31:20.4 Michael: Yeah, exactly. There are two Supreme Court cases related to electronic surveillance that are worth mentioning. Jones v. United States was a decision in... What was it, 2014, I think? Related to GPS trackers. And cops had a practice of putting GPS trackers on people's cars without warrants, and courts generally upheld them under the rationale that, "Hey, you don't have a reasonable expectation of privacy in your movements in the public. The cops could tail you without a warrant, right? So why can't they just track you electronically without a warrant?" And the Supreme Court actually reversed unanimously, although there wasn't unanimous agreement on rationale. But that ended up bringing back the property concerns that we mentioned early on, saying, "Well, look, you're trespassing on someone's property if you're placing a device on their car." So it's sort of revived a dormant part of the Fourth Amendment, and now you have both these property interests and these privacy interests that are at issue.

0:32:29.3 Michael: The other case, more recently, was Carpenter v. United States, which was about historical cell site data, and the government could get five years of prior data of everywhere you've been without a warrant, or with these national security letters, which are super flimsy. And the court, in a 5-4 decision, said, "No, actually, you need a warrant for that." They didn't overturn Smith v. Maryland and explicitly make the point that it's still good law, but they said, "Look, this is just so different." Like Peter was saying, you don't have a realistic option to not have this data tracked. All you do is turn your phone on, and then your location is tracked for the next five years. It's just such a massive increase in difference. It's backward-looking instead of forward-looking. It's not where you're going in the next 10 days, it's everywhere you've been for years. And so they distinguished it like that. So there have been some movement in... Towards privacy again, but it's like...

0:33:35.9 Peter: The starting point was so bad that even some nominal gains don't really get you to a good place. And even outside of the national security context, the cases that have resulted from Smith v. Maryland are some of the Supreme Court's most obscene. There was a case where police officers stole a businessman's briefcase and then copied its contents, and then used that as their evidence, and the court said that that wasn't a constitutional violation.

0:34:05.4 Michael: Yeah, that's right. Well, it wasn't your briefcase they stole, so... Whatever. [laughter]

0:34:10.9 Peter: There's... I think it's Florida v. Riley, which we will undoubtedly cover one day, which... The cops hovered in a helicopter above someone's private property to observe it.

0:34:20.9 Rhiannon: Oh yeah.

0:34:22.2 Peter: And the court was like, "Well, it was viewable from public airspace, so that's okay."

0:34:28.0 Rhiannon: Oh my god!

0:34:28.8 Peter: These cases are unbelievably egregious, and they apply just as much to pre-9/11 criminal law as they do to post-9/11 federal surveillance. The rule created here is one that has haunted our law for 40 years, for 40 years. It's plainly irrational, it makes no sense, it does not jive with any normal person's conception of privacy, and yet there it is, just fucking our shit up.

0:35:02.2 Michael: And fully judicially invented. I think that's an important thing. We're a fan of Katz v. United States, and this whole idea of you have a reasonable expectation of privacy, and the government has to get a warrant if they wanna violate it, but that was new, and that is totally, totally judicially created, as are these exceptions to it. There's no long history of this. There's nothing in the Constitution that demands this... Word or history. It's just what courts have decided is okay.

0:35:37.6 Rhiannon: Yeah, and note how deeply unpopular these rulings are, right? So...

0:35:41.8 Michael: Absolutely.

0:35:42.3 Rhiannon: Congress comes back... After this case, Smith v. Maryland, Congress comes back, like Michael said, and passes a Pen Register Protection Act, essentially. Even though it can't impose the full constitutional Fourth Amendment protections on this pen register information, they do that. When it was leaked, the scope of the government's mass surveillance on incoming and outgoing phone calls in the United States, there's massive public disapproval of that, and the government starts to walk back at least what they say that they're doing. So yeah, just noting that, again, the court as an institution does not represent, necessarily, the interest of the people, and is not the place that you go to make sure our rights are protected. And it's just such a different dynamic in reality, what the court and what these justices do, than the way you're taught it in school, whether that be law school or before. It's just not the sort of bastion of civil rights protections.

0:36:42.7 Michael: Right. And I do think there's something we're thinking about, which is that... If anything, the court is well-positioned to be the bulwark here. The incentives in Congress and the executive branches are so bad because one, a lot of this stuff can happen behind the curtain of state secrets, or they're investigations that never amount to anything, and so they never become public in court or whatever. There's a ton of ways that this stuff just hides below the surface, and people are unaware of it, or even if they are aware of it, it's not their top voting issue. And meanwhile, nobody wants to be presiding over upticks in crime, or a terrorist attack, or any of that stuff, so the electoral incentives are pushing towards eroding civil liberties in the name of "security", and the court is well-positioned to say "No, there's a line."

0:37:47.2 Peter: And really, maybe the only institution that's well-positioned to.

0:37:51.5 Rhiannon: That's right.

0:37:51.7 Michael: Right, that's the whole point of life tenure is the ability to say, "Look, this might not be easy. This might not be the easy thing, and there might be some negative consequences from it, but it's what's required in a free and fair society. It's what our constitution demands."

0:38:09.2 Peter: Yeah. One of the things that you really never see reckoned with very explicitly is that the Fourth Amendment of the Constitution absolutely should make law enforcement's job more difficult. That is the purpose. And if your goal is to sort of smooth over law enforcement's experience so that everything is as easy for them as possible, the Fourth Amendment won't be there at the end of the day. The whole point of it is that the government should have to jump through some hoops, those hoops reflecting your rights, in order to get what they need. That includes at the street level, when it comes to cops trying to tap someone's phone. It includes the sort of like mass surveillance level, when it's the NSA tracking every fucking outgoing phone call in the nation.

0:38:55.7 Peter: You never really see the justices wrestle with that too much. But on the other hand, you frequently see them talk about the difficulties and burdens imposed on law enforcement, as if those need to be considered. The entire purpose of this stuff is that it does impose a burden on law enforcement; otherwise, you wouldn't need the law, or you wouldn't need the constitution. But it's a one-way ratchet, where the Justices are consistently weighing the interests of law enforcement without ever saying, "Well, actually, the entire purpose of the Fourth Amendment is that the interests of law enforcement are secondary." They're not the thing being considered here. You just never see that very frequently, explicitly addressed.

0:39:37.7 Rhiannon: Yeah. They suck.

0:39:40.5 Peter: This is one of those cases that we were thinking about doing for so long, because it's just... Just fucking give me a break with this shit. It's just like...

0:39:48.0 Rhiannon: [laughter] Right, right, right. Just leave me alone! [laughter]

0:39:52.6 Peter: Just make 'em get a fucking warrant. [chuckle] The solution here is so simple, but we were just at a time when the sort of call for tough-on-crime shit was very pervasive in certain circles, and I think that's what you're seeing trickle up here. Even when it wasn't, in and of itself, very popular with the broader public, you have these sort of... These old conservative dudes on the bench, who have a very specific idea of who the criminals are and whose rights they actually care about, and you end up with some shit like this.

0:40:28.6 Rhiannon: That's it.

0:40:29.2 Michael: Yeah, and I wanna emphasize, it's something I think we've sort of hit tangentially, but I think it's worth making it explicit, we're talking a lot about the Fourth Amendment here, but the concerns go so far beyond that, like First Amendment speech protections... If you know that the government is surveilling you, that chills free speech, right? This is something that implicates, I think, more broadly, the relationship between the individual and the State, and changes it, transforms that sort of relationship in a very anti-small-l libertarian way. It changes the nature of our government and our country and our society and makes it less free, and I think... It's almost too narrow to think about it in just a Fourth Amendment context. This little loophole ends up becoming... Having significant, significant consequences that are just unbelievably far-reaching.

0:41:29.3 Peter: Yeah. I guess, before we wrap up, we should say to our listeners, we really appreciate you. To the NSA agents listening to all of our prep phone calls, we do not appreciate you, and we think you're violating the Constitution.

0:41:42.2 Rhiannon: [chuckle] Fed's watching, guys. Fed's watching.

0:41:45.3 Peter: And also, we were joking. We were joking about all that stuff.

[laughter]

0:41:51.6 Peter: Next week, premium episode, Patreon subscribers only. We are talking about textualism, one of the doctrines underpinning conservative legal thought. We will be disproving it using logic. And it will never bother you again, that's our promise.

[laughter]

0:42:11.3 Rhiannon: Take that, Gorsuch!

0:42:13.0 Peter: He will commit suicide after hearing this episode.

[laughter]

0:42:19.5 Peter: By not ducking when he walks through a doorway. Big Slender Man vibes.

[laughter]

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0:42:27.7 Peter: Alright, follow us on Twitter @fivefourpod. Subscribe on Patreon, patreon.com/fivefourpod, all spelled out. And I would be remiss if I did not once again pitch our summer line of merch.

0:42:42.6 Michael: It's so good.

0:42:43.3 Peter: It's excellent. Fivefourpod.com, go to merch. Get your Stephen Breyer Retire Bitch merch, again, with or without the bitch. We have both versions depending on your temperament.

0:42:54.7 Rhiannon: Oh, and we should tell people too that we plan to retire some of our merch this month, so get your Amy Coney Barrett merch now, because it will be gone forever at the end of June.

0:43:07.1 Michael: That's right.

0:43:07.8 Peter: See you next week.

0:43:08.6 Michael: Bye-bye.

0:43:09.4 Rhiannon: Bye. [chuckle]

0:43:12.4 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward, with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Everline. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

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