Landmark Decision Important Beyond NSA Phone Records CollectionHanni Fakhoury The Increasing Irrelevancy of Smith v. Maryland Critically, Judge Leons opinion recognized that relying on the Supreme Courts 1979 decision in Smith v. Maryland to look at new forms of electronic surveillance was foolish. Smith ruled that a person did not have a Fourth Amendment expectation of privacy in the phone numbers he dialed since he had turned that information over to the phone company in order to make the call. Since Smith was decided, courts have extended it to defeat Fourth Amendment challenges to many forms of warrantless surveillance such as acquiring historicalcell site records, information turned over to Internet companies like Twitter, and even customer records held by a utility. So when defending the NSAs surveillance, the government naturally argued that Smith controlled and no warrant was needed to access the phone records. As technology has advanced, however, courts have become leery of relying on Smith to justify endless amounts of electronic surveillance. In 2010, the Sixth Circuit Court of Appeals ruled inUnited States v. Warshak that people have an expectation of privacy in their email even though the messages are stored on a service providers server. In 2012, Supreme Court Justice Sonia Sotomayor noted in her concurring opinion in United States v. Jones that the doctrine was ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. Earlier this year, the New Jersey Supreme Court ruled under its state constitution that police needed a search warrant to obtain cell site records since the expectation of privacy in a persons location is not extinguished merely because a cell phone company has the cell site records. Technological Changes Since Smith Matter One of the fundamental reasons Judge Leon found Smith didnt control was because technology today has far surpassed what the Supreme Court was considering in 1979. Smith was dealing with a much more limited form of surveillance the phone numbers dialed by one customer over a two-week period than what the NSA was doing. Indeed, the Supreme Court in 1979 could not have envisioned the type of bulk collection and analysis of phone records the NSA was conducting, let alone the fact that since cell phones are so ubiquitous, the police could use them to recreate a persons location and movements over an extended period of time. Plus, there has been a significant change in the governments relationship with the telephone companies since Smith. Rather than asking the phone company to engage in limited surveillance of one suspect over a short time period, the government was ordering Verizon to disclose to the government every record of every customer every day on a continuing basis since 2006. The governments ability to collect phone records in bulk allowed it to learn more information than merely collecting information about one particular user in a narrower time frame. Indeed, thats precisely why the government wants the records: to determine connections and associations between people in a way never before imaginable. Ultimately, this difference in scale has constitutional implications. The underlying rationale of Smith is that once customers exposed information to the phone company, they lost the ability to control thatinformation and ran the risk that the company would turn that information over to someone else, including the government. Ultimately, what matters is exposure but whether someone exposes something is dependent on realistic, not theoretical possibilities. For Judge Leon, even if you expose some numbers to the phone company to make a phone call, you dont actually expect and thus dont expose all of the numbers youve dialed (or which have dialed you) for the last five years to the NSA. This is perhaps the most important takeaway from Judge Leons decision. As technology advances are allowing police to take information that is exposed in discrete ways for limited purposes, and aggregate that information in a way that invades upon privacy expectations, constitutional protection are triggered. So even though you may expose the front door of your house to your next door neighbor for fleeting moments, since you dont expect to have your neighbor sit outside your door all day for a month to watch everything you do, you likewise dont expose your home to around the clock video surveillance. While you may expose your location to a person driving by you on the street for a few moments until you make a left turn, you dont expect that person to follow you for weeks and months, and therefore you dont expose your location to continuous GPS tracking. As police departments throughout the country get their hands on all sort of digital surveillance goodies from drones to facial recognition devices to mesh networks, its important for courts to keep in mind that just because surveillance is possible doesnt mean its reasonable. Thankfully, the court that will review Judge Leons decision has already indicated its sympathyto this approach. Hopefully the other courts hearing challenges to the NSAs phone records collection program, as well as those reviewing Fourth Amendment challenges to new technologies in the coming new year, will reach the same result. 