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But that still wasn't enough to link Smith to the crime, so police asked the Chesapeake and Potomac Telephone Co. to record numbers dialed from his home. A week after the robbery, someone from Smith's house called McDonough, giving police enough probable cause to obtain a warrant to search his home. During the search, police found a phone book that was earmarked on the page that listed McDonough's name and phone number. Smith was arrested, and McDonough picked him out in a police lineup.
Throughout his trials and appeals, Smith challenged the state's seizing his telephone records without a warrant. Courts repeatedly upheld his conviction, finding that because he knowingly used the phone company to connect his calls to McDonough's home, he had effectively given information to a third party independent of the case. And once he had done that, courts ruled, he had no reasonable right to expect the records of his phone calls to remain private.
During the 1978 Supreme Court arguments, Sachs said the legal standard in Smith's case was the same as in the days when telephone operators would place calls for clients.
"In the old days, you used to call an operator, and you'd say, `Millie, give me the butcher, I need to order some pork chops,'" Sachs said. "My argument was, you don't have the expectation of privacy because you always gave up your information when you made a phone call."
That legal standard was accepted as recently as last month, when senior U.S. District Judge Jeffrey Miller in San Diego ruled that the NSA's collection of telephone records was constitutional in a case that linked a phone number in California to one used by a suspected operative for al-Shabab, a Somali terror group.
The NSA says it does not listen to the content of the calls, nor does it read Internet messages without specific court approval to do so on a case-by-cases basis. It says it does, however, collect and store records of the time and date calls are made, how long they last, and the phone numbers that are used.
But on Monday, in the first ruling to take on the NSA program, U.S. District Judge Richard Leon in Washington concluded that the phone records collection was likely unconstitutional and its legal foundations far outdated for current technology. (continued...)
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