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NSA justifies telephone-spying program with a '70s purse-snatching case

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Consider the story of a small-time Baltimore criminal named Michael Lee Smith: In 1976, Smith was crouched down behind his car, pretending to change a flat tire. When a woman walked by, he snatched her purse and ran. Identifying the woman from her possessions, Smith began harassing her on the telephone. The Maryland prosecutor assigned to the case suspected that Smith was behind the robbery, so, he subpoenaed the telephone company to keep track of all of Smith’s phone calls. The log was eventually used to convict the purse thief. Smith's lawyers appealed, and the case went all the way to the Supreme Court. The conviction was ultimately upheld.

In the long history of Supreme Court decisions, the ruling that prosecutors were allowed to subpoena a suspect’s call logs might seem like a minor one, but, as Wired wrote, we now know from newly declassified documents that this case provided the basis for the U.S. National Security Agency’s justification for collecting the call logs of every American citizen.

Phone records, which detail when a person makes a call and to whom they make it, are known broadly as telephony metadata. It was first revealed in 2006 that the NSA engages in a massive metadata collection program. Documents leaked this past summer by former intelligence contractor Edward Snowden have further elucidated the extent and purpose of the government’s collection activities. We now know the NSA has brokered deals with major telecoms for customers’ call logs, which are used to graph Americans’ social networks.

Since newspapers began publishing Snowden’s leaks in June, metadata collection has been a hotly contested issue. The government argues it is not an invasion of privacy because the content of the phone calls is not surveilled. Meanwhile, others argue that metadata is actually more telling about a person’s life. It can reveal your medical history, political affiliations, personal relationships, and religious beliefs. This summer, the U.S. House of Representatives voted to continue funding the metadata collection program by a narrow margin of only a dozen votes.

The newly declassified court documents released in late August now reveal that the justification for collecting every American’s phone data stems from Justice Harry Blackmun’s 1979 majority ruling in Smith v. Maryland: “We doubt that people in general entertain any expectation of privacy in the numbers they dial,” he wrote, and “all subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial.”

Wired’s retelling of the case offers up some poignant hindsight from the attornies who argued both sides of the Supreme Court case. “When they started quoting Smith in the NSA investigation and inquiry, I was flabbergasted,” James Gitomer, one of Smith’s lawyers, told Wired. ”I don’t think this case should be used as the foundation to justify the NSA. It doesn’t apply.”

The prosecutor who won the case, Stephen Sachs, shared Gitomer’s opinion: “It was a routine robbery case. The circumstances are radically different today. There wasn’t anything remotely [like] a massive surveillance of citizens’ phone calls or communications,” Sachs told Wired. “It certainly wasn’t contemplated by those involved in Smith.”

Certainly, Sachs is correct. No judge in 1979 could have thought that by allowing the phone records of a suspected criminal be collected for a brief period of time, he was providing a justification for the approval of a mass metadata collection program aimed at every U.S. citizen, regardless of whether he or she is suspected of any wrongdoing. That’s not to say the judges on the case wouldn’t have approved of metadata collection. Only that it cannot reasonably be assumed they were entertaining this possibility. No judge cant consider the ramifications of their rulings on technologies that don’t yet exist.

The problem is somewhat inveitable. The judicial system moves much more slowly than technological advancements (in many cases, for good reason). That said, organizations like the NSA still have an obligation not to exploit this gap. Case in point: Smith v. Maryland.

Photo by Duncan Hull/Flickr