Thurgood Marshall's dissent in Smith v. Maryland (1979). [View all]

[JDPriestly]

We are hearing a lot about Smith v. Maryland these days. In that case, a majority of the members of the Supreme Court determined that the police did not violate the Fourth Amendment rights of a suspect when they obtained the suspect's telephone metadata or a pen register of the suspect's calls from the telephone company without a warrant. That decision concerned the records of a person who was reasonably believed to be a suspect that had committed a crime. And at that time, the government did not have the ability to correlate and map out the relationships between all kinds of people based on e-mails (which did not exist) and telephone records and records of other electronic communications.

Here is a brief excerpt from Thurgood Marshall's dissent to the majority of the Court's decision in that case:

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S. at 389 U. S. 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 357 U. S. 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 695 (1972); id. at 408 U. S. 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

. . . .

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 442 U. S. 746, and MARSHALL, J., post, p. 442 U. S. 748, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.

http://supreme.justia.com/cases/federal/us/442/735/case.html

About Thurgood Marshall:

http://en.wikipedia.org/wiki/Thurgood_Marshall

As usual, Thurgood Marshall understood far more, saw much further and was more compassionate and faithful to justice for all than his colleagues on the Court.

As liberals, we should raise our voices to echo the wisdom and guidance of Marshall with regard to the massive eavesdropping in which our government is engaged. PRISM and other related and similar programs present dangers and extremism that was not presented in Smith v. Maryland. I believe that, over time, as more facts are presented to the Supreme Court, Smith v. Maryland will be overturned in part or in whole. Think about it. Marshall was truly a prophet in his dissent in Smith v. Maryland. His death was a great loss to our country.

I repeat because I just love this quote:

Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.