The government can't tap my phone without a warrant, which means the police must get the permission of a judge - showing that they have probably cause to believe a crime is being committed -- before they can invade my privacy. But do the police have to get permission from a judge before they start recording all the telephone numbers that I dial? In a case called Smith v. Maryland, the Supreme Court said no. Pen registers, as they were then called, recording the numbers dialed on a telephone, recorded information the user had "voluntarily made public." Because the individual had given up this number to the telephone company, she could not complain when the telephone company gave it up to the police. What the individual voluntarily makes public he has no right to control.
But the pen registers considered in *Smith* recorded just the number dialed. That's just one attribute about the call. They did not record the length of the call, the identity of the person called, or the frequency of the calling. And while the number called is a clue, it tells the police very little about the content of the conversation.
Things are different if the police can, without a warrant, gather all of the "communicative attributes" (as Susan Freiwald calls it; see our link on our Web page) from a telephone call. If they could, for example, gather the numbers called, the frequency, the time each call took, the identity of who was called, then they could use this information to piece together lots about the content of the telephone call. While the privacy lost from the pen register is slight, the privacy lost from all of these other "voluntarily made public" bits of data is quite large.
And what about email: The equivalent of a pen register might record the email address you sent an email to. But every email system records much more than this. Email logs record the size of the email, when it was sent, whether it included a file, and if so, what type, whether there was a different return address specified. All these are, like the number dialed on a telephone, bits of information "voluntarily made public."
But is the constitutional protection for them any greater? We don't yet know. Once again, the change in digital technology has made possible the gathering of an extraordinary amount of information that before would have been too costly to collect. But the constitutional, and statutory protections that we now have were based upon a technology that has long been made obsolete. Because of this change in technology, the government can learn a vast amount that it before could not have without substantial cost.
Is that bad? That's a hard question. Some would argue that it is not. The government can learn more, they would say, but the intrusion is less. On balance, does that make us worse off? In part that depends upon what steps individuals can take to protect themselves in cyberspace. We discuss that question later, but first we consider some statutory protections that federal law might provide.
Next post: some statutory protections.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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