Maryland case provides basis for NSA surveillance

Neither Howard Cardin, the skillful criminal defense attorney from Baltimore, nor Steve Sachs, the best attorney general in modern Maryland history, could have predicted what Sachs now calls the "cosmic implications" of the Supreme Court decision that upheld Michael Lee Smith's purse-snatching conviction 35 years ago.

None assembled at the court on the day of arguments, March 28, 1979, imagined that the ruling in the case would be used one day to provide the legal grounds for the National Security Agency's collection of the telephone call records of every American.

The case, Smith v. Maryland, has been cited by the NSA and the Obama administration in defending the operation, which was, of course, a big secret of the government's war on terror until Edward Snowden decided it shouldn't be. And last month, when the Foreign Intelligence Surveillance Court reauthorized the metadata collection, it again cited the Smith ruling.

In June 1979, the Supreme Court held that the right to privacy Americans expect in phone conversations did not extend to the mere record of those calls.

Until Snowden's revelations this year led to broader public awareness of the NSA program, neither Cardin nor Sachs thought much about it; Smith v. Maryland was merely a memory from their long and busy legal careers.

Cardin, who was Smith's attorney, remembers that his father, Meyer Cardin, a Baltimore judge, attended the arguments. "Yes, Howard's dad was there, and my parents were there, too," added Sachs, who represented the state. "It was like a bar mitzvah."

Cardin recalled that the Supreme Court had a standing-room-only crowd that day — not for Smith v. Maryland but for an affirmative action case that drew far more public attention.

"Nobody," Cardin said, "ever thought this would happen."

"This," of course, is the Maryland-based NSA's digital stockpiling of phone calls made in the United States.

The Smith case originated in Baltimore in 1976. Michael Lee Smith snatched a purse from a woman named Patricia McDonough near her home. Among the stolen items, Smith found his victim's phone number. He proceeded to call her and make obscene remarks, according to records.

At some point, police asked the old Chesapeake and Potomac Telephone Co. to attach a device called a pen register to Smith's telephone line. In a recent article about the Smith case, Wired magazine described the pen register as "a fully automatic Morse code receiver that used a pen to mark dots and dashes on a spool of paper tape."

The phone company used it to record Smith's calls. That helped confirm him as a suspect in the purse-snatching. The victim later identified him in a lineup. Smith was tried and convicted in Baltimore Circuit Court.

He appealed his conviction to the Maryland Court of Appeals, with Cardin arguing that the collection of Smith's phone records without a warrant or court order violated the Fourth Amendment protection against unlawful searches as well as Maryland's law against the interception of telephone communications.

But the court upheld Smith's conviction. That July 1978 decision signaled two things — the later Supreme Court ruling cited now by the NSA as well as all the profound concerns about privacy that have been raised since the Snowden revelations.

The Court of Appeals held that because pen registers did not record conversations, Smith's reasonable expectation of privacy was not violated. Using the phone, after all, requires all of us to bring a third party — the telephone company — into the act. "It is generally held that the expectations of privacy protected by the Fourth Amendment attaches to the content of a telephone conversation and not to the fact that a conversation took place," the majority said. "While the content of the call is not revealed to the telephone company, the information as to the number dialed must necessarily be revealed since it is through telephone company switching equipment that calls are completed."

The majority added this: "While the guarantees of the Fourth Amendment are broad, they are not boundless."

Of course, in 1978, neither the judges of Maryland's highest court nor the Supreme Court could have foreseen the power of the Internet and cellular technology. "The world at that time just wasn't as wired as it is today," says Sachs, who sees the Smith citation for the NSA program as outdated and a stretch of legal rationale.

In that regard, I offer some of Judge Harry Cole's dissent from 1978. It reacts to Watergate-era abuses, to be sure, but is fraught with prescience:

"The majority fails to give due weight to the impact of Watergate and its progeny, the recent revelations of illicit surveillance conducted by the FBI upon civil rights, labor and political leaders, or the potential abuse to which the pen register may be put by police. ... Society awaits the forces of good to restore the basic right of privacy which has been steadily eroded.

"For the Fourth Amendment to remain viable, it must adjust to the times and afford protection against new forms of invasions of privacy."

Dan Rodricks' column appears each Tuesday, Thursday and Sunday. He is the host of "Midday" on WYPR-FM.

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