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Austin TWO SEPARATE and apparently unrelated developments may serve to start a campaign to install a Mirandatype warning on all Texas telephones: “Warning! The use of this phone may result in the disclosure of the identity of your telephone contacts to third parties.” Southwestern Bell is presently petitioning the Public Utilities Commission to authorize “metered calling” in Texas. Metered calling would eliminate the flat monthly rate for local telephone service and institute a local billing system similar to that used for direct distance dialing. The second development is an attempt by the Texas Department of Public Safety to use the new wiretapping and electronic surveillance act to justify “pen John Duncan. is Executive Director, Texas Civil Liberties Union. 6 OCTOBER 9, 1981 lte, FORM THU TIME TODK BIS IS HOT tihROW5 IV& /PUMICE REP/C.. tion that the record-keeping requirements violate its members’ First Amendment rights. The Court ruled that the ACLU could not show that the government had attempted to use the system to identify ACLU members and contributors. The Court then rejected the California Bankers Association claim that banks could assert Fourth and Fifth Amendment rights for their depositors. California Bankers Association v. Shulz In 1976, the Burger boys struck again, ruling that before Fourth Amendment rights can be claimed there must be a “legitimate expectation of privacy.” The Court then reasoned that individuals have no legitimate expectation of privacy of records maintained by banks under the Bank Secrecy Act. That’s because the individual has voluntarily made his or her financial affairs known to the third-party bank. This brings us to the pen register issue. Telephone companies around the country have always enjoyed a certain cozy relationship with law enforcement, particularly the FBI. In the case of United States v. New York Telephone the FBI sought a leased line from New. York Telephone to install a pen register. The phone company identified the relevant “pairs,” specific pairs of wires that constituted the circuits,. so that the FBI could attach their equipment while the company looked the other way. The company, however, refused to lease lines to the FBI’s offices to install the pen register without an order under Title III of the Omnibus Crime Control and Safe Streets The Justice Department brought suit against New York Telephone Co. maintaining that a pen register was not a device used to intercept oral communications and thus Title III did not apply. “It is clear,” the Court ruled, “that Congress did not view pen registers as posing a threat to privacy of the same dimension as the interception of oral communications and did not intend to impose Title III restrictions on their use.” The Court used the All Writs Act to rule that the phone company was required to lease the line to the FBI and said, “this statute has served since its inclusion, in substance, in the original Judiciary Act as a legislatively approved source of procedural instruments designed to achieve the rational ends of law.” The final leap of Nixonian logic occured in Smith v. Maryland 99 S. Ct. when the Court held that the use of a pen register was not a “search” within the meaning of the Fourth Amendment, and hence no warrant was required to install and use the device. Warning: DPS May Want To Be Your “Pen” Pal By John Duncan registering” in Texas. A pen register is a device which decodes the clicks or tones of a dial system to print out the called numbers on a tape. To understand how the DPS’s use of pen register relates to metered calling, it is necessary to look at four great leaps of Nixonian logic by the United States Supreme Court between 1974 and 1979. In 1970, Congress passed the so-called Bank Secrecy Act, requiring that every check and numerous other financial transactions be microfilmed or otherwise preserved and made available to federal agents on request. The ACLU and the California Bankers Association challenged the constitutionality of the Act. The Supreme Court conceded that the principal Congressional concern was to set up a system allowing the government to monitor the financial activities of bank customers rather than the activities of the banks themselves, but the Court rejected as “premature” ACLU’s conten ,