The veteran prosecutor learned that, specifically, Smith had become a critical lynchpin in the third-party doctrine.
Today, the third-party doctrine works like this: if Alice calls Bob using Verizon, the fact that this call went over Verizon’s network means that a third party (Verizon) was brought into the mix. Under this logic, neither Alice nor Bob can claim a privacy interest over the fact that the call took place. So, Verizon can disclose this metadata (who called whom, when, and for how long) to the police with little difficulty. In short, the government claims (and the Supreme Court agreed in 1979), that there was no “reasonable expectation of privacy” in numbers disclosed to a phone company.
The legal reasoning of the third-party doctrine for Alice and Bob may seem troubling enough. But that was only the beginning of the FISC analysis. “Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo [out of nothing],” wrote FISC Judge Claire Eagan in FISC Docket Number BR 13-109.
Sachs was disturbed after he read Eagan’s opinion.
“I do not believe that I am the one who opened the door to massive surveillance, that’s not what I want to be remembered for,” he told me.
In Smith, the Supreme Court found that a Baltimore robber, Michael Lee Smith, did not have a reasonable expectation of privacy in the numbers that he dialed—the third party here was the Chesapeake and Potomac Telephone Company. As such, the police did not need a warrant to obtain the numbers dialed through the use of a pen register. Therefore, when it was shown that he repeatedly called a woman that he had burglarized, law enforcement was able to obtain a warrant to search his apartment, and ultimately convict him. Smith, through his lawyer, Howard Cardin, unsuccessfully challenged the evidence that derived from the original use of the pen register. It was Sachs’ victory over Cardin in Smith that laid the foundation of the FISC’s legal opinion that massive warrantless wiretapping was acceptable to the law.
On the same day, October 1, 2013, Kravets had also contacted Cardin. Nearly 25 years after the case had been argued, Cardin was even more certain in his arguments, and was as baffled as Sachs that it could be used to wantonly justify something far greater than what the Supreme Court had been asked to decide in 1979.
Defense attorney Cardin, though now well into his 70s, doesn’t seem to be slowing down anytime soon. He’s got a full caseload and is constantly rushing from his downtown Baltimore office to court, just blocks away. His dusty and carpeted office, replete with an anteroom filled with dozens of magazines and living-room chairs, feels like it belongs in a Dick Tracy movie. It’s decades away from many contemporary law firms, which tend to favor large windows to illuminate their clean—and often sterile—modern design. Appropriately, the law practice of Cardin and Gitomer still has no website.
Cardin was briefly a prosecutor for the first few years of his career, from 1966 until 1970, and then entered private practice—largely as a criminal defense attorney—in 1971. He’s never looked back. Cardin is political and legal royalty in Maryland. His brother, Benjamin Cardin, currently serves as the state’s senior US senator. Their father, Meyer Cardin, served in the Maryland General Assembly and was a judge on Baltimore’s Supreme Bench, now called the Circuit Court. One of Cardin’s sons, Jon Cardin, now works with him in the law firm—after having lost the 2014 election for Maryland attorney general, and after having served in the Maryland House of Delegates for nine years. Cardin’s grandson, Zach Cardin, is currently attending law school at the University of California, Berkeley.
Stephen Sachs and Howard Cardin are forever linked, not only because as of 2017, their grandsons play on the same high school baseball team, but because they faced off against one another on March 28, 1979, at the Supreme Court.
“What they [had was] this nexus between the phones, [with] Smith on one end and the woman on the other,” Cardin said. All the parties were known entities. The case was over whether the authorities could use surveillance to fill in the gap between fixed points.
“Whereas today, when you start taking all these phone numbers and putting them in a warehouse,” Cardin explained, you’re not using it to fill in the gaps. But, instead, “to gain information. Information that I submit would have some protection of…privacy. That’s [the] difference between Smith and the extension of the doctrine today.” For Cardin, the question seemed analogous to the Founder’s distinction between general writs and specific reasonable warrants: Are you looking for something specific, as explained to a judge, or are you simply trawling for anything, anywhere, all the time?
Even Albert Lauber, now a judge on the US Tax Court, who was then a clerk for Justice Harry Blackmun (and drafted the majority opinion), was shocked to learn that Smith was the legal foundation for the NSA metadata program.
“Is that right?” he told me, further explaining that his former boss likely would have been surprised at that expansion as well.
“I think his instinct would be to have been suspicious of what became the huge NSA interception effort,” Lauber added. “Blackmun, he wouldn’t have been able to get his head around the scope of that. The pen register case seemed very simple in terms of technology.”
* * *
As the 1960s drew to a close, there was an increasing awareness of the government’s ability to surveil its own citizens—often without any real check. Or, put another way, how far does the Katz “reasonable expectation of privacy” go? While it may be easier to understand clear-cut situations like a home or telephone booth, does this idea also extend to data, or even physical characteristics? Such concern spurred some modest legislative change at both the federal and state level, which then culminated in a landmark Senate committee that fully exposed the width and breadth of the government’s surveillance program as never before.
Even while Katz was working its way through lower courts, there was a proposal to build a national data bank using the state-of-the-art computer technology at the time. This prospect was so alarming that in 1966, Representative Cornelius Gallagher (D-New Jersey), who chaired the Special Subcommittee on Invasion of Privacy, said: “The presence of these records in Government files is frightening enough, but the thought of them neatly bundled together into one compact package is appalling. We cannot be certain that such dossiers would always be used by benevolent people for benevolent purposes.”
The plan was ultimately killed after Gallagher’s subcommittee issued a cautionary report against it. Still, the specter of immutable, computerized data for law enforcement purposes inevitably loomed. The New York Times warned in June 1970, “Federal Computers Amass Files on Suspect Citizens.”
By the end of 1970, the public began to have a better understanding of how far this surveillance power could go in practice. In December 1970, a University of Michigan law professor published The Assault on Privacy, which was one of the first major books to warn of the potential privacy risks in the digital age.
The book’s author, Arthur R. Miller (now a professor at New York University), warned that even the 1968 Omnibus act was “a technological anachronism,” because it “ignores the realities of modern communications and computer science.”
“By virtually ignoring data communications and the new computer technology, the statute makes it possible for law-enforcement agencies to treat this important form of information transfer as if it were nothing more than a telephone conversation,” he wrote. “Congress’s failure to differentiate between voice and data communications displays either a lack of awareness of recent technological developments in the communications field or a certain amount of disingenuousness.”
Miller also concluded something that the NSA would figure out years later: metadata is incredibly valuable.
“Data transmissions also are more likely than telephone conversations to contain privileged data, which typically are a prime objective of wiretappers,” he wrote.
One of th
e crucial elements of the Katz decision, and the 1968 Safe Streets Act, was the fact that there was an exception for national security interests. The result of which was that—based solely at the president’s or his administration’s discretion—the government’s vast intelligence apparatus could be turned towards essentially anyone. Years later, the Church Committee, the 1975 Senate subcommittee tasked with a review of intelligence activities, noted dryly that “the Nixon administration used these criteria to justify a number of questionable wiretaps.”
* * *
Richard Nixon was voted into office in November 1968 by just half a million votes, just months after both Senator Robert Kennedy and Dr. Martin Luther King, Jr., were assassinated. When he entered the White House in January 1969, President Nixon was met by a nation that was bitterly divided and viscerally hurting. By that point, the Vietnam War had been raging for nearly four years, with no end in sight. America had been paying the price in both treasure and blood: nearly 30,000 American lives had been lost from 1967 to 1968.
The dawn of the Nixon administration marked one of the high-water marks of mass surveillance in America. Even before Nixon, intelligence services were carrying out domestic surveillance operations dating back to the mid-1950s as a way to monitor and mitigate potential influence of communism or communist sympathizers. The intelligence community actively disrupted various civil rights groups through the Counter Intelligence Program (COINTELPRO). Other snooping efforts with more colorful names, like Project Shamrock, were designed to indiscriminately capture postal mail and telegram traffic. Others, like Project Minaret, intercepted the electronic communications of thousands of Americans—initially it was limited to antiwar activists, but by the time Nixon entered the White House, the list had grown to include senators, journalists, and even Muhammad Ali.
Those lists—and the programs themselves—would expand tremendously under Nixon. On April 30, 1970, Nixon announced the Cambodian Campaign, a military effort to strengthen the position of the South Vietnamese and capture Viet Cong matériel. The following day, students began striking in protest of this new policy to ramp up the Vietnam War. On May 4, four students were killed by members of the Ohio National Guard while protesting at Kent State University. Suddenly, Nixon’s interest in what the various surveillance programs of the intelligence agencies were—and how they could be expanded for his use—became all the more urgent.
Not three months later, in July 1970, Nixon signed off on the Huston Plan, which formalized and legalized covert mail opening and increased electronic surveillance, among other tactics. The president quickly rescinded his approval, but that didn’t stop the intelligence agencies from continuing what they had already been doing.
One surveillance case that preceded Nixon, but was ultimately championed by his attorney general, involved the wiretapping of dissidents. In September 1968, just over three months after the Omnibus act was signed, a small bomb went off in the CIA recruitment office at 450 Main Street in Ann Arbor, Michigan. Overnight, someone had placed a few sticks of dynamite nearby, which blew a sizeable hole in the sidewalk and damaged furniture, but did little else. No one was injured. Eventually, three men affiliated with the White Panthers leftist group were arrested and prosecuted for the crime.
As the case moved ahead in 1969 and 1970, prosecutors disclosed during a hearing that a phone conversation involving one of the defendants and a California-based Black Panther had been captured over a warrantless wiretap. As a trial date approached, defense attorneys pushed the government to disclose any electronic surveillance that was used against their clients. In an affidavit, Attorney General John Mitchell (one of Nixon’s most trusted colleagues) wrote that one of the suspects, Robert “Pun” Plamondon, was overheard on a wiretap that was “employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government.”
In other words, while under normal circumstances law enforcement would have to present a super-warrant application for a judge to sign off on the wiretap, the attorney general claimed a power, under the presumed mandate of national security, to be able to wiretap anyone unilaterally based on the power that stemmed from the Title III law. Put another way, under this logic, if Charles Katz had been perceived as a threat to national security, the FBI could have wiretapped the phone booth’s line directly rather than going through all the gymnastics of rigging up a microphone atop the phone booth.
The Ann Arbor case ran right into a buzz saw, which came in the form of then US District Judge Damon Keith. By the time he had been randomly assigned the case, Judge Keith had been a judge for only a few years. In fact, when he was tapped for a judgeship by President Lyndon Johnson, he was just one of a handful of federal African-American judges nationwide.
In January 1971, Judge Keith came out strongly against the government and Mitchell’s entire legal theory.
“An idea which seems to permeate much of the Government’s argument is that a dissident domestic organization is akin to an unfriendly foreign power that must be dealt with in the same fashion,” Judge Keith wrote in his decision. “There is a great danger in an argument of this nature, for it strikes at the very constitutional privileges and immunities that are inherent in United States citizenship.”
Reminding everyone of the language of the Katz decision, the judge recalled that “the Fourth Amendment protects a defendant from the evil of the uninvited ear.”
The Department of Justice appealed the case to the 6th US Circuit Court of Appeals, which upheld Judge Keith’s ruling. The appeals court famously found, in what came to be known as the Keith case (rather than its official and cumbersome name: United States v. United States District Court), that there was not “one written phrase” in the Constitution or statutes to support the Justice Department’s view. The government appealed up to the Supreme Court, which again, denied the government’s efforts.
“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power,” Justice Lewis Powell wrote in the unanimous 8–0 opinion. One would think that would have closed the book on such wiretapping. But as we’ll see, the government continued to find innovative ways to circumvent the courts.
* * *
Beyond legal rulings, there was some legislative action as well—even at the state level. On the other side of the country, a California state assembly member proposed a state constitutional amendment designed to extend privacy protections to state citizens beyond what the federal government allowed.
In 1971, Assemblymember Kenneth Cory of Orange County submitted twin bills. The first bill proposed modifying the state’s constitution, while the other expanded greater individual control over data and information held by the government. While the bills didn’t pass, eventually, under Proposition 11, which was approved by the voters directly, the net result was a two-word modification (“and privacy”) to the very last line of Article I, Section 1, of the California Constitution:
All people are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety, happiness, and privacy.
Today, California is just one of 10 states that specifically outline an affirmative right to privacy, a definition that goes beyond Katz.
California’s state right to privacy proved critical in a California Supreme Court case known as Burrows v. Superior Court (1974), which unanimously found that an attorney accused of grand theft had a privacy interest in his bank records—police could not simply arrive at the bank and make copies of bank statements without a warrant or court order to do so.
“For all practical purposes, the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account,” Califo
rnia Chief Justice Stanley Mosk wrote for a unanimous court.
As he continued:
Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.
* * *
The year 1971 was also a big one for exposing the intelligence and crime-fighting techniques that had gotten out of hand.
On March 8, 1971, the Citizens’ Commission to Investigate the FBI broke into an FBI office in Media, Pennsylvania, outside Philadelphia. The eight-person group sought, among other objectives, to determine “the nature and extent of surveillance and intimidation carried on by this office of the FBI, particularly against groups and individuals working for a more just, humane and peaceful society.”
The group, whose members were not revealed until 2014, managed to spirit away and publish around 1,000 documents, including detailed descriptions of COINTELPRO, among other secret government programs.
Their efforts, combined with FBI Director J. Edgar Hoover’s death (1972) and Nixon’s downfall as a result of the Watergate bugging scandal and cover-up (1974), resulted in the formation of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee, which began its work in 1975. The group released a multivolume report, several hundred pages long, the following year. It provided incredibly detailed testimony as to how the intelligence community had gone so far astray. The study remains the most comprehensive effort to evaluate the intelligence community to date.
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