25 thoughts on “Privacy’s Postmortem: Smith v. Maryland And How A Pen Register Became A Threat To Freedom

  1. Mark, you bring up many interesting conflicting constitutional points.

    The Framers never imagined our technology and my hopes are dashed for our constitution being upheld by our “Constitutional Law Professor” President.

    While many demonize Snowden and in all honesty, to a degree, I do too, I am still glad he did what he did. The constitution is in tatters in light of what Snowden has revealed, in my book.

    We need the the good Professor Turley on TV more.😀

  2. Wow. Interesting, mespo. I remember those early pen register days when I worked for the prosecutor. The phone company was fast and loose w/ giving out info. The only time we got a court order or subpoena duces tecum was if it was going to trial. It was a different world back then and to base current NSA decisions on Smith v Maryland is breathtaking.

    Call me a blind optimist but I think SCOTUS will get to the right place on the NSA.

  3. Mark,
    I am moving my office, and earlier today was going through boxes of books to see what to donate to the library and what to keep. I stumbled across my eighth grade civics textbook. I stood there for a long time trying to decide what to do with it. Finally decided to donate it. People can look on it in amazement and wonder that such quaint ideas were actually taught in school in the olden days.

  4. Sadly we are entering a time where the big brother security state has more money behind it than the liberty or freedom state. And most people are so apathetic about anything civic that doesn’t involve a football team or duck dynasty member.

  5. Great blog, Mark! Chilling, at best.

    Nick: “Call me a blind optimist but I think SCOTUS will get to the right place on the NSA.”

    Nick, if I didn’t like your posts so much as a rule, I would say ‘blind optimist’ would not be what I would call you. If you truly believe that, I think it would be more like ‘delusional’.:-)

  6. Kraaken, I’ll go further, a righteous 6-3 vote. I hope that isn’t evidence used to commit me to a “a nervous hospital” as Carl in Sling Blade called it.

  7. Who needs a Pen Register?

    In Blackmun’s opinion, the “Pen Register” is merely a mechanical equivalent of a human operator. Hence, if a human
    operator were still being employed then that person could be called to testify in court about the switchboard connections s/he made.
    Logically it follows that ANY operator could be called to testify, but ONLY about their switchboard connections related to Smith.

    However, according to Pauley this distinction is nonexistent. In applying this precedent to ACLU v. Clapper we must assume that
    Blackmun’s opinion meant that the police could just as easily have seized the entire phone company database of meta-data. Apparently
    Blackmun reasoned that if human operators were still in use, the police could subpoenaed every switchboard operator in america and compell
    each of them in turn to testify about every single connection they made, including those with no bearing on this case whatsoever.

    Does this sound like Blackmun’s opinion to you?

  8. DD:

    “Does this sound like Blackmun’s opinion to you?”


    Apparently, it reads that way to Judge Pauley.

  9. Thanks Mespo. That is my question — does Pauley actually make this argument in this way, or is he too stupid to understand the distinction? As a federal judge I presume he is a really bright guy, so maybe I am the stupid one. Okay, so here I am, ready to be enlightened… Anyone?

  10. Very well said Mark.

    Judge Pauley of Clinton went the opposite direction that Judge Leon of Bush did.

    But not in the expected direction, eh?

    It is apparent, in this military NSA debate, that the lines of expected demarcation have been blown away by something.

    I think it involves very fundamental psychological dynamics flowing within us, like those Luke Skywalker felt when he found out that his father was Darth Vader.

    That caused volcanoes of conflicting emotions to erupt deep within him and his sister Laia (Security: Familyland, Fatherland, or Homeland? – 3).

    We want, deep down inside where great powers stir, a stable, warm, kind, good, safe, consistent, and intelligent universe –starting with our parents, then expanding out to our surroundings, a dimension that always grows larger and larger as we grow up.

    Our extended self wants more of the same stuff that makes us “fat, sassy, and happy” as it were:

    … a common metaphor, shared by conservatives and liberals alike — the Nation-as-Family metaphor, in which the nation is seen as a family, the government as a parent and the citizens as children …

    (Security: Familyland, Fatherland, or Homeland?, quoting Prof. Lakoff). Try telling a young child that her daddy has another girlfriend and other children, or that her mother has another boyfriend and children besides her.

    You and you horrible lies will be promptly rejected.

    It is self protection and self survival, because our emotions are just as real and just as much “us” as our arms, legs, and whatnot.

    We are a people that see our extended selves dying, being corrupted, becoming more and more diseased, and even becoming hazardous to our own well being.

    There is gangrene.

    We have to develop personal survival skills like those in the German slave camps did.

    No one is coming to help us.

    Stay inclined toward the best and preserve it, because that is all this nation and planet are going to have for the future … dispersed individuals who will have to build it over again, except hopefully “better next time.”

    These people like Judge Pauley, who desperately cling to their teddy bears and other imaginary comforts (“my government is good and would do nothing to harm itself or its people”), is the type of uber selfishness that is difficult to detect within us, but is quite real.

    And very destructive to the tools we must have to navigate the current reality that has come over us like a fog of war.

    Calling what we are losing “privacy” is a euphemism on steroids.

  11. jeesh Mr. Esposito, isn’t that sht THE most exasperating crap that we have to suffer through, when a FEDERAL judge, the last bulwark against formalized tyranny, can just make sweeping dismissals of fundamental rights, with a straight face. Making insensible analogies, comparing formal analysis’ here for support of his argument, then getting all gee-willikers in distinguishing other analogies that don’t fit his pre-determined result.
    If I didn’t know better, I’d say this judge was bought off, his decision reads like the logic in Dred Scott, where all that is true and holy and in our Constitutional DNA, is now arbitrary, inconsequential and up for grabs.

    I hope the SCOTUS puts a little bit of sanity back into this mix. The logic of this judge would enable the disassembly of any and all rights we think we have.

  12. Gary T:

    Likely he wasn’t bought off in the generally accepted sense. Judges are loath to buck the executive at any level and overturning a billion dollar program passed scores of times by Congress makes them pucker. If you read his opinion he points out the number of times Congress has approved this law. He’s just passing the hot potato to those nine black robed cooks upstairs and letting them handle it. Don’t expect a lot of political courage from folks who suckle at the public teat. That’s why when we finally do see it we usually declare a public holiday or a war.

  13. Talk about Orwellian — In his opinion Pauley says “there is another level of absurdity in this case” and here it is:

    The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to PRECLUDE suits by targets even if they discovered section 215 orders implicating them.

    That sounds a lot like “What she doesn’t know can’t hurt her.” Right. And even if she does know, even if EVERYONE knows, even if it devastates her, it doesn’t count because it was SUPPOSED to be secret.

    Call me crazy, but I say legislation INTENDED to PRECLUDE victims from ever having any opportunity to even SEEK justice deserves even harsher condemnation; a reason to throw the book at the NSA, not excuse them.

    Pauley then says “It cannot possibly be that lawbreaking conduct by a government contractor … could frustrate Congress’s intent” meaning that Snowden (or anyone else) can’t be permitted to expose NSA crimes merely by, you know, exposing them. Note that Pauley declares Snowden to be guilty of a crime; so much for a Federal Judge understanding the bedrock principle of presumption of innocence.

  14. Let’s cut through the legalese here and call it like it is: Judge Pauley’s decision read like the essay of a candidate to General Counsel of the NSA.

  15. A NSA official, and whistleblower, prior to Snowden, has this to say:

    “What they have been exposing should be public knowledge,” he declared. “Collecting all this information on individuals is what totalitarian states have done down through the centuries. That’s been their business.”

    It is why German Chancellor Angela Merkel, whose phone was tapped by the NSA, was upset. It is like what the Stasi did, what the KGB did, what the Gestapo and SS did and what Mao Zedong’s people did in China. It is a “totalitarian procedure.”

    Binney argued, “If we accept this, then we’re accepting totalitarianism. We have to speak up against it.”

    The fact that the NSA is intruding upon systems all over the world and violating their integrity and the trust of users, in Binney’s opinion, is a violation of the Fifth Amendment. For Americans, it means citizens no longer can guarantee they will have private thoughts. “Everything can be used against you.”

    The use of metadata is a violation of the First Amendment, to Binney. It undermines the “right to free association.” And, Sen. Dianne Feinstein’s claim about the metadata not being surveillance because it doesn’t reveal a person’s identity is false.

    Binney explained, “The phone number is your identity. Just do a reverse look-up and you get everything you’d want to know—your address, your name and everything.” You get “people associated with you. You get all this information.”

    (The Dissenter).

  16. Excellent Mark….. You’re right….


    Brennan and Marshall were two of the best civil liberties preserves on the Sct…. I could take issue with some of their civil business decision…..

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