> If Smith v. Maryland is to be overturned...

The Supreme Court wouldn't necessarily be deciding whether Smith v. Maryland should be overturned, but whether NSA collection of phone/SMS metadata can be distinguished from Smith. The district judge here presents some excellent arguments that Smith is fundamentally different, and I was disappointed to read Professor Kerr's very sloppy analysis, given how excellent his Fourth Amendment coverage usually is. Perhaps he did not have a chance to read the case carefully.

Brief background on Smith v. Maryland:
In Smith, a robbery victim complained to police that she was continually receiving threatening and obscene phone calls. The phone company installed a pen register at police request, without a warrant or court order, to record metadata for about 2 weeks; this revealed the phone numbers of all subsequent callers to her home. It also revealed that Smith made another harassing phone call. In short, the Supreme Court ruled that, in the process of calling, Smith voluntarily transmitted the phone numbers he dialed to the phone company, information he and everyone else know are commonly stored as business records, so he had no reasonable expectation of privacy in the numbers dialed. Therefore, the Fourth Amendment didn't apply.

Contrary to Professor Kerr's blog post, the real reasons Judge Leon thinks the NSA's metadata collection is different are quite compelling. Here's my summary of his reasons from pages 42-56:

1. Smith surveillance was only for 2 weeks; NSA surveillance is for as long as terrorism lasts in the United States (forever?)

2. Previous case law supports a distinction on the basis of time length: In US v. Knotts (1983), the Court said police use of a tracking beeper on an automobile does not implicate the Fourth Amendment because we have no reasonable expectation of privacy in our movement on public streets. But last year in US v. Jones, the Court distinguished Knotts, which was about short-term tracking, saying that police installation of a GPS device on Jones's car for a month was too long and violated Jones's reasonable expectation of privacy.

3. In Smith there was no indication the phone records would be kept; NSA keeps phone records for 5 years

4. Smith was a one-time, targeted request; the NSA program is a daily, all-encompassing, indiscriminate dump of phone metadata. Leon: "It's one thing to say people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate...a joint intelligence-gathering operation with the Government."

5. The Smith Court did not foresee in 1979 the "almost-Orwellian technology" the NSA is using to track and store hundreds of millions of Americans' phone data.

6. "Most importantly," the nature of the information in our telephony metadata is much different.

7. Phones are ubiquitous and much more frequently used, so metadata reveals more about our private lives and implicates a bigger privacy interest than in 1979.

8. SMS metadata reveals who we wrote to, information that would not have been available in 1979 phone metadata when we had to write letters.

Judge Leon's conclusion, which I think is compelling given the foregoing: "I cannot navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."