Smith v. Maryland, 442 U.S. 735 (1979)

MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins, dissenting.

I am not persuaded that the numbers dialed from a private telephone fall outside the constitutional protection of the Fourth and Fourteenth Amendments.

In Katz v. United States, 389 U.S. 347, 352, the Court acknowledged the "vital role that the public telephone has come to play in private communication[s]." The role played by a private telephone is even more vital, and since Katz, it has been abundantly clear that telephone conversations carried on by people in their homes or offices are fully protected by the Fourth and Fourteenth Amendments. As the Court said in United States v. United States District Court, 407 U.S. 297, 313,

the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.

(Footnote omitted.)

Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled "to assume that the words he utters into the mouthpiece will not be broadcast to the world." Katz v. United States, supra at 352.

The central question in this case is whether a person who makes telephone calls from his home is entitled to make a similar assumption about the numbers he dials. What the telephone company does or might do with those numbers is no more relevant to this inquiry than it would be in a case involving the conversation itself. It is simply not enough to say, after Katz, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police.

I think that the numbers dialed from a private telephone -- like the conversations that occur during a call -- are within the constitutional protection recognized in Katz.{1} It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy.{2} The information captured by such surveillance emanates from private conduct within a person’s home or office -- locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that, under Katz, is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.

The numbers dialed from a private telephone -- although certainly more prosaic than the conversation itself -- are not without "content." Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.

I respectfully dissent.

1. It is true, as the Court pointed out in United States v. New York Tel. Co., 434 U.S. 159, 166-167, that, under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, pen registers are not considered "interceptions" because "they do not acquire the `contents’ of communications," as that term is defined by Congress. We are concerned in this case, however, not with the technical definitions of a statute, but with the requirements of the Constitution.

2. The question whether a defendant who is not a member of the subscriber’s household has "standing" to object to pen register surveillance of a private telephone is, of course, distinct. Cf. Rakas v. Illinois, 439 U.S. 128.