''Smith v. Maryland'', 442 U.S. 735 (1979), was a

Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

case holding that the installation and use of a

pen register A pen register, or dialed number recorder (DNR), is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen regi ...

by the police to obtain information on a suspect's telephone calls was not a "

search Searching or search may refer to: Computing technology * Search algorithm, including keyword search ** :Search algorithms * Search and optimization for problem solving in artificial intelligence * Search engine technology, software for find ...

" within the meaning of the

Fourth Amendment to the United States Constitution The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge o ...

, and hence no

search warrant A search warrant is a court order that a magistrate or judge issues to authorize law enforcement officers to conduct a search of a person, location, or vehicle for evidence of a crime and to confiscate any evidence they find. In most countries, ...

was required. In the majority opinion, Justice

Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1970 to 1994. Appointed by Republican President Richard Nixon, Black ...

rejected the idea that the installation and use of a pen register constitutes a violation of the suspect's

reasonable expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privacy ...

since the telephone numbers would be available to and recorded by the phone company anyway.. The ''Smith'' ruling was the Supreme Court's first significant articulation of the

third-party doctrine The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expect ...

in which government investigators may be permitted to search a person's private information by obtaining it not from the person directly, but from a business or other party with which the person has traded such information voluntarily.

Background

The law surrounding police searches of a suspect's telephone information dates back to 1928. That year, the Supreme Court ruled in '' Olmstead v. United States'' that

wiretapping Telephone tapping (also wire tapping or wiretapping in American English) is the monitoring of telephone and Internet-based conversations by a third party, often by covert means. The wire tap received its name because, historically, the monitorin ...

of private phone calls does not require a warrant under the Fourth Amendment because the intrusion does not take place within a private home. That ruling was overturned in 1967 in ''

Katz v. United States ''Katz v. United States'', 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constituti ...

'', in which the Supreme Court held that the Fourth Amendment applied not just to places but to a person's private life, thus making a warrant required for many more types of police searches.''Katz v. United States''
389 US 347
(1967). ''Smith v. Maryland'' originated in 1976, when police in

Baltimore, Maryland Baltimore ( , locally: or ) is the most populous city in the U.S. state of Maryland, fourth most populous city in the Mid-Atlantic, and the 30th most populous city in the United States with a population of 585,708 in 2020. Baltimore wa ...

suspected Michael Lee Smith of robbing a woman and then continuing to harass her via telephone. Police sought evidence that Smith had called the victim's phone number, and approached the local telephone company about installing a

at the company's central office to record the numbers that Smith had called from his home phone. The pen register information revealed that Smith had indeed called the victim, and this information was used to support his arrest and conviction. Smith appealed his conviction in Maryland court, arguing that police collection of information about his telephone calls was a

that required a warrant under the Fourth Amendment. His constitutional argument was rejected and his criminal conviction stood. Smith appealed to the U.S. Supreme Court, which took the case.

Opinion of the court

The Supreme Court, in a majority opinion written by Justice

, held that police use of a

to collect information on telephone usage is not a

because the "petitioner voluntarily conveyed numerical information to the telephone company." Since Smith "disclosed" the dialed numbers to the telephone company so that they could connect his call, he could not reasonably expect that the numbers he dialed were private. Per the

, the court determined that a customer on a public telephone network uses the service voluntarily and must accept that the network provider knows and records the numbers called in order to connect calls and charge accordingly. Thus, the voluntary network customer must also accept that other parties, including the police, can review that usage information and there is no realistic expectation of privacy for that data. Therefore, the police are not required to obtain a warrant to collect that information.

Dissenting opinions

In a dissenting opinion, Justice

Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas ...

argued that, like the contents of a conversation, the record of numbers dialed from a private telephone should be constitutionally protected because the phone numbers that someone calls can provide a portrait of their personal life and therefore should be subjected to constitutional protections. According to Stewart, even though a pen register does not record the content of a phone call, "The numbers dialed from a private telephone—although certainly more prosaic than the conversation itself—are not without 'content'." In a second dissenting opinion, Justice

Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...

expressed his disagreement with the majority's interpretation of the

, stating: "The use of pen registers, I believe, constitutes such an extensive intrusion. ..The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts."

Impact and legacy

The ''Smith'' decision solidified the

, making it easier for government investigators to surveil information that the users of telecommunications networks voluntarily share with network providers. The ''Smith'' decision also added to the definition of types of communication that may or may fall within the

in light of new developments in telecommunications service. However, the ruling concerned landline telephone technologies that were prevalent in 1979, but the precedent is still being used decades later to justify government

surveillance Surveillance is the monitoring of behavior, many activities, or information for the purpose of information gathering, influencing, managing or directing. This can include observation from a distance by means of electronic equipment, such as ...

of more advanced Internet communications platforms that collect much more personal information, including the content of messages, and are not necessarily used "voluntarily". This has led to some criticism of the use of the ''Smith'' ruling by the

National Security Agency The National Security Agency (NSA) is a national-level intelligence agency of the United States Department of Defense, under the authority of the Director of National Intelligence (DNI). The NSA is responsible for global monitoring, collecti ...

(NSA) and law enforcement entities to justify modern electronic surveillance. This conundrum has led one federal judge to call for the ''Smith'' precedent to be reevaluated or eliminated in light of more recent technological developments, though other judges have accepted its use in court disputes surrounding surveillance by the NSA. This has resulted in some calls to reassess both the third-party doctrine and the continued efficacy of the ''Smith'' precedent in light of modern telecommunications technologies and the personal information they collect.

References

External links