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33 Responses

  1. Interesting stuff. I don’t know much about the Fourth Amendment, but a few thoughts sprung to mind reading this. Maybe they will illustrate that I don’t know much about the Fourth Amendment…
    1. It seems like trade secret law/norms would have a lot to say about the whole assumption of risk thing. There’s a lot of similar precedent- does telling one person kill the secret, what are inappropriate means of obtaining information, etc.

    2. If Smith is about the assumption of risk (as is Miller) because the company could have shared the data, shouldn’t we be focusing on the statutory framework about such data now? Do we have protections of phone calling info that did not exist at the time of Smith? Do we protect bank records in a way we did not in the past?

    3. I’m not convinced by the consensual/mandatory line. If the phone company could give the records over freely, I’m having a hard time seeing how my privacy interests are harmed when the phone company doesn’t fight a warrant. To say that dialing record disclosure is fine if the government knocks on the door and asks nicely, but not fine if it sends a warrant is a distinction without a difference in my mind.

    4. Somewhat related (and more broad), what do we do about all the Terms of Service that allow free sharing with “partners?” Why can’t the government be a partner? Why can’t the serving of a warrant make the government a partner for a limited purpose? Don’t all of these privacy policies say that information will be disclosed on a government subpoena or warrant? Isn’t that our agreement?

    I agree that we have to look at norms of privacy, but in an age where everything is free because our information is the product, I think it’s tough to say that our information should somehow retain it’s privacy. Not that I like that one bit, mind you, it just makes me skeptical of trying to distinguish Smith in the absence of some new statute that says that companies can’t do what they could do at the time of Smith.

  2. Brett Bellmore says:

    “I’m not convinced by the consensual/mandatory line.”

    The reasoning is pretty straightforward: You’ve shared the data with the phone company, they have as much right to it as you do, so if you could voluntarily give it to the police, so can they.

    But if the police need a warrant to force YOU to provide the information, they need a warrant to force the phone company to provide it. You’re BOTH being protected by the requirement.

    Essentially, the constitution sets out a procedure with requirements for compelling people to share information with the government: Get a warrant. The need for a warrant isn’t triggered by who has the data, it’s triggered by the government’s decision to force the release of it.

  3. This discussion reminds me of a conversation I had with a former colleague, who was also president emeritus of the university. He said that when the University attempted to use a photo it downloaded from Facebook, the student said, “You can’t use that, that’s private!”

    I get that protection of user information held by aggregators is the end goal, but it presupposes that the company you’ve shared the information with is an extension of you, such that YOU are protected against warrants against [Aggregator]. It also presupposes that the information is protected by a right of privacy, which is the question at issue.

    But that’s a bootstrap argument. Dual protection doesn’t, to my mind, answer the “reasonable expectation” question that’s posed in the main post. If I have no reasonable expectation of privacy, then whether it’s a warrant or it’s consensual disclosure makes no difference. If there’s no expectation of privacy, no warrant is needed in the first place, is there? The only limitation on gathering the information is whatever underlying statutory structure allows, such as no breaking in to company offices or no wiretapping.

    So, this leads to the questions I asked: Has our expectation of privacy in what phone companies can do with our phone numbers changed since 1979? If not, then how do we say Smith no longer applies? We might say it was wrong, of course, but if Smith is justified by a lack of expectation of privacy, then whether it was voluntary or a warrant seems irrelevant.

    Further, if we have all agreed that our information can be distributed to others, and, worse, in response to subpoenas and warrants, haven’t we given up the expectation of privacy? I suppose in the warrant case, we would say NO, because our agreement was that there would be probable cause for a warrant first. But what if the NSA set up a direct mail company and just paid for the information? What’s our defense then?

  4. Orin Kerr says:

    Katherine writes: “Contrary to such critics, I believe that Judge Leon has his finger squarely on the pulse of the Supreme Court in reading Smith narrowly and stepping away from an absolutist understanding of the so-called third party doctrine.”

    The problem with that argument is that inferior judges are supposed to follow Supreme Court precedent, not guess where the Supreme Court might go next. Cf. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). Put another way, lower court judges can’t revisit Supreme Court precedent; that’s just above their pay grade. So even assuming that this is how the Supreme Court should approach the case, if they get it — a separate issue that I’ll put aside for now — I don’t think it follows that an inferior judge like Judge Leon should take the same approach.

  5. Katherine Strandburg says:

    In response to Michael’s and Brett’s comments:

    I’ll start with Michael’s comments about presuming and bootstrapping: Brett more or less states the conclusion of my argument, though I hold off from saying that a warrant is required because the question of exactly what the Fourth Amendment requires in a given situation is a bit more complicated. (Usually, though, the Fourth Amendment requires a warrant based on probable cause that meets certain requirements of particularity.) But that’s the conclusion of my argument, not its presumption. The argument has these steps.

    1) It is incorrect to say that merely because I’ve shared information with someone else, the information no longer has Fourth Amendment protection. That’s what I call the aggressive version of the third party doctrine and it’s just wrong. In Katz, for example, what is said in the phone call is shared between the callers, but the government still can’t listen in without a warrant.

    2) The difficult issue is not whether I have Fourth Amendment protection for the information per se, but whether I have Fourth Amendment protection against searches of the service provider’s records. The Fourth Amendment protects me when the government searches my house, papers, or effects. It doesn’t ordinarily protect me when the government searches your house, papers, or effects even if your papers contain all kind of juicy secrets about me. Should obtaining the service provider’s records of my communications be considered a search of my private records for Fourth Amendment purposes?

    3) I argue that if technological change would permit the government to use indirect means to thoroughly circumvent the Fourth Amendment’s constraints on traditional searches, those indirect means should be treated as searches. I then argue that this is what the Court is doing in Katz and in Kyllo. Without Katz, the government could monitor my conversations by “searching” the phone company’s wires. Without Kyllo, the government could find out what is going on in my house by standing outside with an infrared camera. Lower courts similarly have held that the government searches my correspondence when it looks at copies of emails on the service provider’s servers. These results are correct because service providers are special. My ability to communicate effectively in today’s world depends on using them. By obtaining their records, the government indirectly searches my communications.

    On a few of Michael’s earlier points:

    About trade secrecy: The analogy is certainly worth thinking about because you’re undoubtedly right that trade secrecy law confronts many related questions. But I suspect that the purposes and presumptions behind the doctrines are so different that the analogy may not be very useful in the end. Trade secrecy doctrine tends to put a thumb on the scale of getting information out there, while the Fourth Amendment keeps information away from the government unless it needs it.

    About whether there are statutory protections that prohibit phone companies and banks from turning information over to the government voluntarily: The short answer is yes. Congress enacted legislation requiring a court order to install a pen register in 1986 and provisions also have been enacted prohibiting voluntary disclosure of customer calling records. There is a complicated set of statutes governing the authorization of government access to such information. The CRS has a useful summary here. (But see Hepting v. AT&T related to phone company culpability in the Bush administration’s metadata collection.)

    About why it matters whether the Fourth Amendment applies: The Fourth Amendment requirement of a warrant or some other legal process would matter even if the phone company could hand the data over voluntarily, as it did in Smith, because I could choose a phone company that would build its reputation around not turning data over voluntarily.

    About privacy policies, etc.: If the police come to the phone company with the appropriate legal process, it has to turn over the data (whether or not its privacy policy says it will). That’s not the issue. The issue is what legal process is required. If there is no Fourth Amendment protection, then Congress can pass a statute that says that the government can demand the data whenever it pleases. Or it can pass a statute like Section 215 with a very low threshold of “relevance to an authorized investigation” for getting a court order for the data. If there is Fourth Amendment protection, the threshold for getting a court order will be more demanding, usually at the level of probable cause.

  6. Katherine Strandburg says:

    In response to Orin:

    But I would argue that there is no Supreme Court precedent directly on point, which is what I mean by reading Smith narrowly. Smith is distinguishable not only because of the breadth of the NSA metadata collection (which is enough in itself to distinguish Smith), but also because in Smith the phone company voluntarily handed over the information about the numbers. Smith doesn’t tell you whether the Fourth Amendment applies in a case where the phone company does not disclose voluntarily.

  7. Orin Kerr says:

    Katherine, thanks very much for the response. Let me push back on your explanation, though: Don’t you have to rely on the reasoning of Smith to know if these factual differences make the case so easily distinguishable? The reasoning of Smith indicates that the voluntariness of the phone company’s behavior has to be irrelevant. According to the Court’s majority oponion, dialing the number is just like telling the number to a human operator; after having told the information to the operator, you can’t stop the operator from telling the information to the government. You have no Fourth Amendment right in the number dialed just like you have no Fourth Amendment way to stop someone you shared a secret with from talking to the police. For the voluntariness of the phone company’s disclosure to matter, then, it would have to matter in the equivalent case of a person-to-person conversation. Following the example from Smith, it would have to be a Fourth Amendment violation to subpoena a telephone operator (or any other person) to force them to disclose what they heard. That’s not the law, though: It’s not a search for an eyewitness to describe what they saw or what they were told, regardless of whether they talk to the police voluntarily or pursuant to a subpoena. Given that, I’m not sure how the voluntariness of the phone company’s involvement can provide a basis on which to distinguish Smith.

  8. Orin makes the point that I was trying to make – it’s not about the voluntariness of the disclosure. It’s about the reasonable expectation once you have disclosed the “information” to the service provider.

    So I think the focus has to be on what has changed in those reasonable expectations – why phone numbers now are entitled to a reasonable expectation (like Katz) in a way they weren’t before (or even now, like the operator). I think the new statutes, new norms and privacy policies, etc., might get you there, but I don’t think it’s because the disclosure was voluntary in Smith.

    As for trade secrets, whether you think the law favors getting information “out there” depends on where you sit, I suppose 🙂 There’s a lot of disclosure that remains protected. Indeed, the phone number dialing would likely be given trade secret status.

  9. Brett Bellmore says:

    No, it IS precisely about the voluntariness of the disclosure. I see no point in denying this, unless the aim is to compel without the required safeguards.

    What is a “warrant”? It is legal authorization to compel. It makes no sense at all to set out conditions for issuance of warrants, and permit the very compulsion they are authorization to engage in without one.

    Let us not further enable the construction of a police state, in the name of not inconveniencing the government

  10. I think we’re talking about different things here. Of course we don’t want providers to disclose information without a warrant. But that doesn’t mean that Smith’s rationale about reasonable expectations would have been different if a subpoena/215 request to install the pen register were at issue rather than a “request.”

    Kathy says you and she are making the same argument, but I don’t think so. You are saying: “we want to force a warrant because we don’t want a police state, so this information can’t be disclosed without a warrant. No subpeonas, ever.” That’s a reasonable position, but it does not track the rationale of Smith, nor the reasons to narrow it.

    Let’s look at another “no expectation” type of information: the trash. Courts say (if I recall correctly) that when you put out the trash, you’ve given up your reasonable expectation of privacy. Now, when that case first came up, the trash could have voluntarily been put on the curb, or the police could have issued a subpoena (but no warrant) to get access to the trash area of an apartment complex or (I suppose) the apartment could have delivered the trash upon “request.”

    The result, though, is the same: the trash is no longer subject to a warrant requirement. It doesn’t matter that the trash was voluntarily on the curb or was accessed by a subpoena on a third party custodian or was voluntarily given by the third party custodian.

    Kathy is saying: Let’s take another look at this trash precedent. Apartment complexes are more secure than they used to be, and (I would add) we now have statutes that require apartment buildings to protect the trash. When people dump their trash in apartment buildings, they no longer “assume the risk” that apartment buildings will give that trash to someone else. As a result, the reasonable expectation of privacy is much greater than it used to be.

    Brett is saying: We have the safeguard of warrants, so if the apartment complex has the trash, we should require the warrant, even if the very same trash is freely discoverable out on the curb.

    Like I said, the latter position is a fine one in my book, but it doesn’t accomplish what the original post set out to do, which is explain why Smith no longer applies.

  11. Marty Lederman says:

    But Orin, the Rodriguez de Quijas “rule,” such as it is, does not require lower courts to follow the *reasoning* of the SCOTUS in future cases — to the contrary; as the quotation you invoke states, the rule is that lower courts must adhere to SCOTUS judgments on all fours with the case at hand, *rather than* to the Court’s reasoning. And as Katherine and Judge Leon note, the judgment in Smith is easily distinguishable from the 215 question; there are many significant differences between the two cases, especially for a doctrine of “reasonableness” that typically is very context-sensitive.

    OK, but one might argue that lower courts ought, in addition, slavishly follow the rationale that was necessary to the SCOTUS’s decision — the ratio decidendi. Even if that were the rule, however, it’s not obviously on point here, since it’s very difficult to figure out exactly which of the many points in Blackmun’s opinion is the ratio decidendi.

    You appear to assume that something like the following was *sufficient* (and necessary?) for the decision in Smith, based on the phone operator analogy: The state can compel a third party to reveal anything the third party would be at liberty to voluntarily disclose.

    I’m skeptical. For one thing, I don’t think it’s at all clear that the operator analogy was sufficient to the judgment in Smith. As we’ve discussed, another very fair reading of the opinion — one that the CTA5 and DOJ invoked in the cell-site decision — is that it was also necessary that the information in question be of the sort that the third party regularly holds as records for its own business purposes (and that the first party is aware of that practice).

    Second — really? That’s the “holding” of Smith? Can it really be the case that the state can, for instance, compel everyone I’ve ever spoken with to reveal the content of all of our conversations — with no Fourth Amendment limits at all — just because those persons could, if they wished, offer that same info to the police? Does anyone think *that* is the law?

    Finally, it’s a bit question-begging to have the rationale of Smith turn on whether the phone company could voluntarily turn over the information to the state. As I understand it, the standard customer service agreement for Verizon and most providers is that they promise that they will keep the info secret *except* pursuant to lawful state compulsion. Which means that they *can’t* voluntarily turn it over to the state. And so if the legality of the state compulsion turns on whether Verizon could act voluntarily, well, then there can be no such compulsion. (If I’m wrong about that — if that’s not true about the Verizon contract now — it certainly will be true of many providers’ contracts post-Snowden.)

    Having said all of that, I can’t help but add: Who cares how lower courts should read Smith here? Obviously, the Supreme Court will not feel itself bound by any particular reading of Smith, and will almost certainly reject the broader readings that you suggest, whether they uphold the 215 telephony metadata program or not.

    Of course, it matters in this practical respect — What will the government be permitted to do while the case is working its way up to an ultimate SCOTUS decision? If the lower courts believe that they are bound by your maximalist view of Smith, then they could write the same exact opinions as Judge Leon’s, but not actually enjoin the program. Or they could — as I expect the CTADC will — conclude that at a minimum there is a serious constitutional question, and conclude, for that avoidance reason and others, that the 215 program is not statutorily authorized. Even then, I expect that any injunction would be stayed pending appeal to the Supreme Court . . . which is why it hardly matters whether Smith “controls” here, any more than it mattered whether Knotts “controlled” the decision in Maynard/Jones.

    What matters, instead, for the eventual resolution of the case, are exactly the sorts of considerations that Katherine describes.

  12. “Can it really be the case that the state can, for instance, compel everyone I’ve ever spoken with to reveal the content of all of our conversations — with no Fourth Amendment limits at all — just because those persons could, if they wished, offer that same info to the police?”

    Isn’t that well settled law? It’s been a while since I took Crim Pro, and maybe things changed, but I recall being deeply disturbed by the cases that said the government could search someone else’s possessions without a warrant and it would not violate my 4th Amendment rights. Sure, it would violate the holder’s rights, but not mine. And if they weren’t the target, their only recourse was a 1983 action because the exclusionary rule is irrelevant.

    Am I misremembering that? If not, then the holding of Smith, as I just reread the case, is that even if the caller has a subjective expectation of privacy, that expectation is not reasonable because of all the things the court describes. As such, unless that expectation has now become reasonable, the police can subpoena, 215, surveil, plunder, etc., and it might violate the phone company rights, but not my own 4th amendment rights.

    Of course, this is where Brett’s point comes in – it’s a short run to the police state if that’s the rule. A point with which I’m in full agreement.

  13. Marty Lederman says:

    Michael: That is the implication of some of the reasoning of Miller, et al. Katherine’s point, however, as I take it, is that there’s plenty of other places where the Court has shied away from such reasoning or signaled discomfort with its logic — and landmark cases, such as Katz, in which it makes no sense. As long as the rights of the third party and statutory limits (e.g., on subpoenas) are doing the necessary work, the Court is unlikely to revisit the presumption that my rights fall out of the picture altogether when I share info with another.

    But if the statute and the third party are not going to do the work, I predict there are few, if any, Justices prepared to embrace that rationale of Miller wholeheartedly.

  14. I don’t think it’s just an implication – I think courts have held as much. I’m thinking of cases like Rakas v. Illinois. Is that still good law? Passengers in the car have no 4th amendment right to a search of someone else’s car. This leads to disputes even now about similar scenarios for hotels, parents, house guests, etc., but that basic rule stands for the proposition that if you don’t have a reasonable expectation of privacy, it doesn’t matter how the government gets the information as to your own 4th amendment rights. I suppose based on your comment, the view has to be that Rakas says “1983 will keep the police from doing this” be we knew then that this was a joke and we know now that this is a joke. So, while I’m cautiously optimistic that courts will see it differently now, I’m not counting on it.

    I’m not sure I get the continued reliance on Katz in this thread. Katz came before Smith and was cited by Smith and then distinguished. So if we want to rely on Katz again, I think some explanation of how pin registers (or today’s equivalent) is now like Katz when it wasn’t in 1979. I know the original post seeks to do that, but it’s hard to turn off my law professor instinct to press the assumptions.

  15. Marty Lederman says:

    “If you don’t have a reasonable expectation of privacy, it doesn’t matter how the government gets the information as to your own 4th amendment rights.”

    Well, of course. But the point is that people *do* have a reasonable expectation of privacy in many things they share with others. And most or all Justices are likely to think as much, too.

    If they didn’t, then Charles Katz would not have had any reasonable expectation of privacy in the contents of his phone call — after all, he was sharing wagering information (“I have Northwestern minus 7”; “Oregon plus 3”) with others . . . indeed, with others who regularly recorded such information as part of their business records!

    That’s why it’s difficult to square the asserted basic principle with the decision in Katz.

  16. And yet, we have case after case after case since Katz finding a lack of reasonable expectation. Just sayin’. There are many cases I would have thought the justices would have found reasonable expectations and didn’t – including the trash case. People don’t reasonably think that others will rummage through their trash, do they?

    I’m hoping you’re right that this one will be different, or that somehow these Justices are different from the Justices of Rakas, or that they will see Smith differently in light of new statutes, etc., but I’m not holding my breath.

  17. Katherine Strandburg says:

    Marty has basically made my response to Orin (which is lucky for me, since I’m about to run off to the airport). The basic point is that if Smith is read to hold that people generally and always lose all Fourth Amendment rights in things they share with others, it’s inconsistent with lots of later Supreme Court case law, such as Georgia v. Randolph. (Note that it also would mean that there are no Fourth Amendment rights in email content.) But Smith can be read consistently with all that later case law if one notes that it was a case involving voluntary disclosure by the phone company.

    The open questions, which are not resolved by Smith, are what Fourth Amendment rights (if any) the caller retains in call information that is shared with the service provider and what legal process is required for the government to get it. On that, there are many cases about the Fourth Amendment’s implications for shared spaces, things, etc. and their outcomes depend on context.

    More to say on this, but off to the airport so no time now. Really appreciate everyone’s comments and discussion!

  18. Marty Lederman says:

    Yes, we “have case after case after case since Katz finding a lack of reasonable expectation.”

    But some that don’t.

    I think some doctrinal framing goes a long way to explaining this dynamic — especially the Court’s willing to find no reasonable expectation in cases where everyone thinks there is one.

    In many earlier cases, the Court was eager to find (even if not believe) no reasonable expectation of privacy, because if it could say “no search” at the outset, it avoided two fairly prominent ramifications:

    (i) a general presumption that searches require warrants; and

    (ii) a strong exclusionary rule.

    Both of those background doctrines have been considerably weakened in recent years. If the Court now believes, as it probably does, that it can apply an all-factors-considered “reasonableness” inquiry (no warrant automatically required), and that unconstitutional searches will not automatically result in exclusion of relevant evidence, it will be much more willing to find a reasonable expectation of privacy at the outset.

    (Just to be clear: I’m not an unalloyed fan of those two developments in the doctrine. But they do give the Court more breathing room on the “is it a search?” question.)

  19. Orin Kerr says:

    I have a very different view of the Fourth Amendment than Marty and Katherine.

    First, I see the rule of Smith v. Maryland as the same as the rule applied in about a dozen similar Supreme Court majority opinions, all of which adopted the same approach with great consistency: When you decide to share information with a third party, it is not a search of *you* for the government to get that information from the third party (however it obtains it). That’s the rationale of the 5t Circuit cell site case, and it’s DOJ’s view, Miller, Smith, etc. It’s just the standard rule of the third-party doctrine. Smith is just one example of the large body of Supreme Court caselaw adopting the same approach.

    Georgia v. Randolph is not relevant to this discussion because it’s a case about a different doctrine in Fourth Amendment law: Randolph is about the doctrine of third-party consent, a doctrine that (when it applies) makes a search reasonable. In Randolph, no one could have possibly argued that Mr. Randolph lacked a reasonable expectation of privacy in his home. It was his home; of course he had a reasonable expectation of privacy there. The issue in that case was a separate question of what is the scope of valid co-occupant consent when his wife invited the cops inside. But that’s an issue of consent, not reasonable expectations of privacy. They’re different doctrines that play different roles in Fourth Amendment law. I don’t think it works to take a case from a *different doctrine* to say that it somehow undermined Smith v. Maryland.

    Marty appears to suggest that the reasoning of Katz and Smith are inconsistent, so perhaps Katz in 1967 undermines the reasoning of Smith in 1979. But I don’t know why the reasoning of Katz and Smith are supposed to be inconsistent. Even taking Katz as if it had held that intercepting the contents of phone calls is a search — which isn’t what it held, but everyone treats it as if it did — the obvious distinction is between communicant and intermediary. When you make a phone call to call your mother, you’re first communicating with the phone company to hook up the call, and then, once the call is hooked up, you’re communicating with your mother. The role of the phone company switches from that of the communicant to that of intermediary the moment the call has been placed; in the example from Smith v. Maryland, that’s the moment that the telephone operator plugs in the call on the switchboard and connects the call. The consistent rule is that you lose all Fourth Amendment protection in what you say to the person you are communicating with: If the government wants to find out what you told the phone company or your mother, that’s an issue of their Fourth Amendment rights but not yours. So to answer Marty, if the government went to the bookie that Charlie Katz was talking to on the phone, and forced the bookie to say what bets Katz had placed, that wouldn’t violate Katz’s Fourth Amendment rights. Katz disclosed the phone number to the phone company and his bets to the bookie: Katz’s Fourth Amendment rights are not implicated if the government gets that information from either communicant.

    Marty asks the question of why we should care about how lower courts read Smith. One answer is that some of us are legal nerds who just care because we care about law. Another answer is that some of us are Burkean conservatives who believe that law is meaningful and care about stare decisis. A third answer — and the most interesting one — is that the debate over Leon’s opinion is interesting for the same reason the debate over the lower court opinions over Obamacare were interesting.

    Indeed, I have a strong sense of deja vu. Judge Leon is playing the role of Judge Vinson and Hudson — the role of the district judge who hates the challenged law and who writes a passionate and emotional opinions striking down a major government program closely associated with the President. Just like Judges Vinson and Hudson, Judge Leon found the the new situation “unprecedented” and concluded that he could ignore the relevant Supreme Court precedents that everyone thought was controlling, Just like Judges Vinson and Hudson, Judge Leon instead embarked on a first-principles rethinking of constitutional principles that is being celebrated by those who never liked the current state of the relevant doctrine and are hoping for a major shift towards the constitutionalization of their policy preferences. Of course, the politics are very different, but the dynamic strikes me as remarkably similar.

  20. Marty Lederman says:

    If I understand Orin correctly, Justice Blackmun could have limited his opinion in Smith to a single sentence: “This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Or, he might have written a different one-sentence opinion: “Since the state obtained the information from the phone company, Smith’s Fourth Amendment rights are neither here nor there.”

    The rest is dicta . . .

  21. Orin Kerr says:


    In my experience, Supreme Court opinions generally discuss the facts of the case, the lower court opinion, and the doctrinal context — all of which generally occupoes a few pages — before getting to the point that decides the case. But yes, I think the basic reasoning of Smith does boil down to that simple idea. To be sure, I agree that Justice Blackmun’s opinion is lousy. Unfortunately, that’s true of lot of Blackmun opinions. The most obvious oddity in Smith is the bizarre discussion of subjective expectations of privacy, in which Justice Blackmun speculates incoherently about the issue but never actually decides it, all before moving on to the reasonable expectation of privacy point. That section is all dicta, to the extent its speculation is read as saying anything.

  22. Marty Lederman says:

    Fair enough, Orin. The only dicta, then, was the following, without which Justice Blackmun would have secured five votes in any event:

    The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, 4 our lodestar is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” noting that the Fourth Amendment “protects people, not places.” Id., at 351-353, 88 S.Ct., at 511-512. Because the Government’s monitoring of Katz’ conversation “violated the privacy upon which he justifiably relied while using the telephone booth,” the Court held that it “constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id., at 353, 88 S.Ct., at 512.

    Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. E. g., Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387, and n. 12 (1978); id., at 150, 151, 99 S.Ct., at 434, 435 (concurring opinion); id., at 164, 99 S.Ct., at 441 (dissenting opinion); United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 1623, 48 L.Ed.2d 71 (1976); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973); Couch v. United States, 409 U.S. 322, 335-336, 93 S.Ct. 611, 619-620, 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion); Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U.S., at 361, 88 S.Ct., at 516 whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve something as private.” Id., at 351, 88 S.Ct., at 511. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable,’ ” id., at 361, 88 S.Ct., at 516—whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353, 88 S.Ct., at 512. 5 See Rakas v. Illinois, 439 U.S., at 143-144 n. 12, 99 S.Ct., at 430; id., at 151, 99 S.Ct., at 434 (concurring opinion); United States v. White, 401 U.S., at 752, 91 S.Ct., at 1126 (plurality opinion).


    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. This Court recently noted:

    “Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed—a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.” United States v. New York Tel. Co., 434 U.S. 159, 167, 98 S.Ct. 364, 369, 54 L.Ed.2d 376 (1977).

    Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.

    This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud and preventing violations of law.” United States v. New York Tel. Co., 434 U.S., at 174-175, 98 S.Ct., at 373. Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L.Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone Co., 457 F.Supp. 814, 816 (Md.1978); Note, 60 Cornell L.Rev., at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L.Rev. 108, 110-111 (1970). Most phone books tell subscribers, on a page entitled “Consumer Information,” that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” E. g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

    Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he “used the telephone in his house to the exclusion of all others.” Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.

    Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S., at 361, 88 S.Ct., at 516.


    The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

    Petitioner argues, however, that automatic switching equipment differs from a live operator in one pertinent respect. An operator, in theory at least, is capable of remembering every number that is conveyed to him by callers. Electronic equipment, by contrast can “remember” only those numbers it is programmed to record, and telephone companies, in view of their present billing practices, usually do not record local calls. Since petitioner, in calling McDonough, was making a local call, his expectation of privacy as to her number, on this theory, would be “legitimate.”

    This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not in our view, make any constitutional difference. Regardless of the phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner’s theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.

    We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not “legitimate.”

  23. Orin Kerr says:

    Marty, I’m not sure what argument you’re trying to make.

  24. Marty Lederman says:

    Simply that there’s no reason to think the Court in Smith thought it was sufficient for the holding *either*

    that it wasn’t a search because Smith had “no legitimate expectation of privacy in information he voluntarily turns over to third parties” — a holding that would conflict with, e.g., Katz


    that Smith had no Fourth Amendment rights, and loses, simply because the state got the information from the phone company — a “holding” that the Court neglected to articulate.

  25. Orin Kerr says:

    Marty, I’m confused. Let me break it down into to questions:

    1) Why do you think the third party doctrine conflicts with Katz? You don’t turn over the contents of your phone call any more than you turn over the contents of your postal letters to the mailman. In both cases, you get Fourth Amendment protection in the contents of the communication but not the addressing information communicated to the network provider. What’s the conflict?

    2) But didn’t the court pretty much articulate that point as the holding? The Court wrote:

    This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. . . . This analysis dictates that petitioner can claim no legitimate expectation of privacy here. 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.

    That is, Smith told the numbers to the phone company, relinquishing his rights in the information disclosed to the phone company once it arrived at the phone company recipient. It’s the same point. Granted, Smith leaves open an interesting question: If the government intercepted the numbers dialed on the way to the phone company, would that count as contents of the communication between Smith and the phone company protected by Katz, or would it count as just numbers dialed by Smith still unprotected under Smith. But I’m not sure why that open question (which Julian Sanchez has written a lot about recently) means that the third party doctrine was not the basis of the ruling in Smith.

  26. Orin Kerr says:

    (Sorry, in 1 above, it should be, “You don’t turn over the contents of your phone call to the phone company any more. . . . “)

  27. Marty Lederman says:

    There have been (at least) two descriptions of the third-party doctrine invoked in this thread.

    The first is the simple sentence from Smith itself: “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    This can’t be all there is to it, or Katz would have come out the other way (Katz having shared the content of his communications with the recipient, e.g., the bookie or bettor). And Kyllo. And Randolph. Etc. And if that were sufficient for the holding in Smith, the Court didn’t need to spend so many pages discussing other factors.

    Alternatively, you have articulated a rule that if the state obtains the info from another party, the fact that the info is about you, or that you gave it to the third party, is simply of no moment, because the only party whose Fourth Amendment rights count is the person from whom the state gets the evidence. But that’s not a holding even mentioned in Smith — and the entire discussion of the Court assumes that there is a serious question about Smith’s Fourth Amendment rights.

    And as for your second, specific question, no, the Smith Court did not articulate the “A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties” sentence as “the holding.” Again, if that had been the Court’s view, then it would not have bothered with the other 90% of the legal analysis. And it would have had to overrule Katz, et al.

  28. Orin Kerr says:

    Marty, I see all three cases — Katz, Kyllo, and Randolph — as consistent with that sentence in Smith. In Katz, the government did not get the information that had been turned over to the third party (that is, the bookie); In Kyllo, the defendant did not voluntarily turn over any information to anyone; and in Randolph, the government did not obtain information turned over to third parties at all.

  29. Marty Lederman says:

    Orin, now you’ve lost me, so I suppose we’re even! In all three cases, the government was seeking information that the individual in question had voluntarily exposed, or conveyed, to third parties (the bookie in Katz, the family or estranged wife in the other two cases). If an individual has no expectation of privacy in such information — the sentence you declare as the holding in Smith — then all three cases were wrongly decided.

  30. Orin Kerr says:

    Marty, I think you’re missing the point by imposing a quirky meaning of the word “information” in the statement of the third party doctrine. When Mr. Randolph exposed his drugs to Mrs. Randolph, he didn’t lose his privacy rights in his home or over the drugs: He just lost control over the information he shared with Mrs. Randolph, so Mrs. Randoph was free to tell it to the police or could disclose it pursuant to a subpoena. It is the copy of the information conveyed, not all conceivable sources of the information, that is no longer protected by the Fourth Amendment. Similarly, when a person is on the phone in their home and is talking to someone on the phone who is far away, they don’t lose their privacy rights in their home (or public phone booths) just because they lose privacy rights in the actual copy of the communication disclosed to the third party. These rules aren’t in any way inconsistent with the statement in Smith.

  31. Merry Christmas to all who are celebrating! I saw this today – H/T to Howard Bashman – and thought immediately of this thread:

    9th Cir. holds (en banc) that warrantless records request of hotel guest information violates the 4th amendment rights of the hotels.

    The opinion had this to say about the rights of the hotel guests themselves. I thought this bears directly on this discussion:

    That the hotel records at issue contain information mainly
    about the hotel’s guests does not strip them of constitutional protection. To be sure, the guests lack any privacy interest of their own in the hotel’s records. United States v. Cormier,220 F.3d 1103, 1108 (9th Cir. 2000); see United States v.Miller, 425 U.S. 435, 440 (1976). But that is because the records belong to the hotel, not the guest, and the records contain information that the guests have voluntarily disclosed to the hotel. Cormier, 220 F.3d at 1108. It may be the case, as the dissent speculates, that the hotel in Cormier voluntarily consented to an inspection of its guest records. See Clifton Dissent at 29. But that does not support the dissent’s contention that hotels generally lack an expectation of privacy in such records. Otherwise, the fact that a defendant in one of our published decisions voluntarily consented to the search of his home would establish that the rest of us lack an expectation of privacy in our own homes.

  32. Orin Kerr says:

    Michael, the 9th Circuit’s opinion is problematic for a bunch of reasons — blog post forthcoming on that soon — but there’s an underlying point that I have made before: There is a plausible basis for arguing that the NSA program constitutes a Fourth Amendment violation of the *phone company’s* rights, at least if the phone company wants to object to the orders:

  33. I look forward to reading it. The 9th Circuit holding seems consistent with that view of the phone company rights – that’s another reason I found it interesting. This issue will surely come to a head one way or the other, and I don’t think it will require the NSA to do it.