Thurgood Marshall's dissent in Smith v. Maryland (1979).

[JDPriestly]

We are hearing a lot about Smith v. Maryland these days. In that case, a majority of the members of the Supreme Court determined that the police did not violate the Fourth Amendment rights of a suspect when they obtained the suspect's telephone metadata or a pen register of the suspect's calls from the telephone company without a warrant. That decision concerned the records of a person who was reasonably believed to be a suspect that had committed a crime. And at that time, the government did not have the ability to correlate and map out the relationships between all kinds of people based on e-mails (which did not exist) and telephone records and records of other electronic communications.

Here is a brief excerpt from Thurgood Marshall's dissent to the majority of the Court's decision in that case:

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S. at 389 U. S. 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 357 U. S. 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 695 (1972); id. at 408 U. S. 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

. . . .

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 442 U. S. 746, and MARSHALL, J., post, p. 442 U. S. 748, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.

http://supreme.justia.com/cases/federal/us/442/735/case.html

About Thurgood Marshall:

http://en.wikipedia.org/wiki/Thurgood_Marshall

As usual, Thurgood Marshall understood far more, saw much further and was more compassionate and faithful to justice for all than his colleagues on the Court.

As liberals, we should raise our voices to echo the wisdom and guidance of Marshall with regard to the massive eavesdropping in which our government is engaged. PRISM and other related and similar programs present dangers and extremism that was not presented in Smith v. Maryland. I believe that, over time, as more facts are presented to the Supreme Court, Smith v. Maryland will be overturned in part or in whole. Think about it. Marshall was truly a prophet in his dissent in Smith v. Maryland. His death was a great loss to our country.

I repeat because I just love this quote:

Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

[Recursion]

1. I appreciate Marshall's argument; there are some real technical problems with that, though

I do see where he's coming from, and I'd like to move in that direction. There's also the purely technical wall I keep hitting that the record of my dialing a number belongs to the phone company I sent those tones too.

[bluedeathray]

2. "the hallmark of a truly free society"

Speaking of technical walls, if technology got us here, why couldn't technology create barriers to snooping and firewalls of the variety that prevent data confiscation.

And a commercial entity "possessing" that data does NOT imply that the government has any right to put their filthy little fingers on it. The implications for coercive, conspiratorial, or other abusive behavior by our leaders is massive. Marshall was spot on.

[JDPriestly]

3. It may belong to the phone company, but the government has no right to see it

if in looking at it and analyzing it, it violates my constitutional rights.

The decision in Smith v. Maryland was based on facts far too different from the surveillance that is going on today. Smith v. Maryland really did not implicate First Amendment issues. But the surveillance or potential surveillance of pen registers of journalists or members of Congress or the judiciary and their aides implicates all kinds of constitutional violations.

[Recursion]

4. Well, then we need a court to the left of the court in 1979. Good luck with that. (nt)

[JDPriestly]

5. It will take time, but the pendulum is swinging to the left. It never swings

smoothly. But the rightward direction has gone much too far, and the Republicans have lost their appeal and their creativity.

[Recursion]

6. I agree on that, which is why I think the Obama/Reagan comparisons are apt (nt)

[JDPriestly]

9. It is a matter of time. It will happen.

I am rather confused by your post though. On the one hand the apologists for this surveillance program claim that those of us who oppose it are libertarian Rand supporters. And now you assert that the only way will get First Amendment issues properly considered by the Supreme Court with regard to this program is to get a more liberal court.

Which is it? Are we libertarian extremists or liberals? We can't be both. I am a liberal. That is my opinion. Those who support these programs are not, at least not on this issue, liberal. That is my opinion.

[Recursion]

10. You must be confusing me with other posters

I haven't called anyone a libertarian or a liberal. I don't think either are particularly useful labels today.

[JDPriestly]

8. Which is OK because your phone company can't arrest you for some

bogus charge, can't investigate you for something, probably won't tell your employer that you make too many calls to the local Democratic headquarters during campaigns and is not going to waste time listening in on your actual calls.

The government can target you. Your phone company is not obligated to protect your First Amendment rights. Your government is. Your phone company is not obligated to allow you privacy in your discussions with your defense attorney in a criminal case. The common law tradition is that you have that right, and the right to counsel is considered a guarantee of that right within certain limits. Your phone company does not have the obligation to guarantee those rights to you.

There is a huge difference in terms of the Bill of Rights between what the government is prohibited from doing and what your phone company is prohibited from doing. If your phone company compromises your private information, you might be able to sue them and nowadays you can switch phone companies. If the government does that, you have a constitutional claim against them.

That is why what Marshall wrote is so important. The Bill of Rights limits the rights of the government and thus we say it guarantees ours. In reality, it restricts the rights of the government. And I firmly believe that the government is chilling speech and other rights and violating the Bill of Rights in a number of ways with this surveillance program.

I agree with Thurgood Marshall. The issue about phone company access to the records is relevant to Fourth Amendment issues and whether you have an expectation of privacy as to those records. Marshall's argument concerns First Amendment issues including freedom of religion, of speech, of the press, etc. He explained it very well. Wish he were here.

[ReRe]

7. K&R, JDPriestly!

Thank you so much for this OP!