Is There An Expectation of Privacy When We Share Information with Third Parties? – by Robert Wilson

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In today’s world, we share (or are forced to share) loads of personal information. From giving our info to the cashier at Best Buy, to signing up for apps, even for using our cell phone. Does this necessarily mean we give up our privacy on this sensitive information that in today’s world has to be shared in order for us to function? To better understand how vulnerable our privacy rights are, we can start with a good example from 1976 and extrapolate that legal ruling to today’s world.

In 1976, a woman from Baltimore filed a police report, stating that she had been robbed. Luckily for the police, the lady had a description of the suspect and even knew what kind of car he was driving, a 1975 Monte Carlo. The police began to patrol the area looking for a suspect and car that matched that description, and low and behold, they struck gold. Enter Michael Lee Smith into this story, the suspect. Now upfront, we should probably say that Smith may be near the top of the lists of the world’s worst criminals. Not only did he rob this poor lady, he then used her ID from her stolen wallet to track down her address, and from there her phone number. And what does Smith do with that information? What any savvy criminal would do – he calls his victim, admitting to be the robber while also making obscene comments. The woman reports these phone calls to the police. 

As part of the investigation, the police then get in touch with the phone company and instruct them to use a “pen register” to gather information about all calls dialed from Smith’s home. If you don’t know what a pen register is – don’t feel bad; 1976 was a long time ago.  Essentially, it was an automatic recording device phone companies used in the stone age to compile data of what numbers were called from the target’s phone number (e.g. Smith). Of important note here, the police did not get a search warrant in order for the police to seize the pen register. 

After looking over Smith’s phone calls, the police found that he had in fact called the victim on the same nights that she had reported being called. The police used this information, along with the description of Smith and his car, to obtain a search warrant of his residence. From that search, police found a phone book that was turned to the victim’s number. Wham, bam, thank you ma’am – Smith is arrested, and the victim picks Smith out of a “six-pack” lineup. Despite his attempts to suppress “all fruits [evidence] derived from the pen register”, Smith was convicted at trial. The court held that the warrantless installation of the pen register did not violate the Fourth Amendment. Smith Appealed, but the Maryland Court of Appeals affirmed the conviction. Smith then throws the Hail Mary, and the case falls squarely on the desk of the U.S. Supreme Court. And this is where things get interesting. 

In hearing the case, the Supreme Court upholds the rulings of the lower courts, holding that Smith did not have an actual expectation of privacy in his phone calls because… wait for it….he knew he was [voluntarily] sharing that information with the phone company. 

1976 was a long time ago but the right to privacy is not a new legal concept. In our everyday lives, how many times a day do we “voluntarily” give up sensitive information to a third-party? Apple, Alexa, Facebook know every time we get off of the couch to grab a drink, what we like to buy, where we work, where we like to travel, what our politics are. However deep in our subconscious, most of us are aware that a third-party has that information. But because we are forced to share information in order to buy groceries or use an app, should that mean that our actions are voluntary and we are comfortable with that third-party sharing that information with the government whenever they come knocking? Imagine the breadth and scope of the information the government could obtain on you, completely warrantless.

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