Justice Blackmum wrote for the majority that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “legitimate expectation of privacy” that has been invaded by government action. He concluded that a person dialing a phone “in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not ‘legitimate.’ “First,” Mr. Blackmum reasoned, “it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as ‘reasonable.’ When petitioner voluntarily conveyed the numerical information to the phone company and ‘exposed’ that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information.” This opinion concerned a case in which a pen register was installed without warrant and with the telephone company’s assistance. THE DPS HAS already been engaged in a forum-shopping expedition which has moved from Tarrant to Harris to Nueces County seeking court orders instructing Southwestern Bell to lease lines to install pen registers outside the scope of the wiretapping and electronic surveillance act passed during the 1981 legislative session. In a story by Pamela Lyon which first appeared in the Corpus Christi Caller Times, Nueces County Assistant Attorney Ken Botary is quoted as saying, “The wiretapping law generated a new tool for us, and we feel that it also permitted a corollary, the pen register.” Botary goes on to say that the DPS had sought an order from 319th State District Judge Max Bennett directing Southwestern Bell to assist in installing a pen register. According to the CallerTimes, a brief written by DPS Asst. Gen. Counsel John West, Jr. entitled “Can a Texas District Court Issue a Court Order Directing the Phone Company to Assist in the Installation of a Pen Register?” was submitted to Judge Bennett. It would appear that DPS is attempting to judicially alter the role of the law by bringing a New York Telephone type case in a Texas District Court. The DPS brief argues that “since the legislature saw fit to enact a statute \(the under strict guidelines it necessarily follows that a lesser intrusion would not require as strict guidelines.” It then argues that officials seeking a pen register would only demonstrate “reasonable cause,” i.e., a hunch, “that criminal activity is taking place,” not the stricter “probable cause” required for wiretaps. Not only is the strict probable cause standard discarded by DPS, but according to Botary, DPS wants to discard the nine designated judges who act statewide to hear applications for wiretap orders, moving instead toward a Smith v. Maryland interpretation of the law. Of interest here to Texans should be the fact the U.S. Supreme Court rulings which expand the power of the police state are permissive. It’s not mandatory for the Texas courts and legislature to goose-step with every sieg heil from the Burger Court. Over the years as the Supreme Court has increasingly Nixonized the federal law, Texas law, at least prior to the last legislative session, has intended to provide more protection from the police state than has federal law. Even with the passage of the Break, Enter, and Bug Act, it is going to take some considerable stretch of the imagination, and some leaps of Nixonian logic which would be a credit to the Burger Court, to get a TEXAS court construction of the Code of Criminal Procedure which would accommodate the DPS’s desires without some legislative amendment. WHEN CONTACTED ABOUT these developments by Virginia Ellis of the Dallas Times Herald, Col. James Adams of the DPS said that the passage of the wiretap laws had nothing to do with the legal action in Corpus Christi. Adams said that some local police departments had been using pen registers for several years and that DPS had used them only when participating in investigations with federal officers. DPS, he said, didn’t have the equipment. It would appear to this observer that to the extent such devices have been used, they were illegal under Texas law. For those who intuitively suspect the worst, one should ponder the whole pen register technology. If DPS or local police are allowed on hunch or whim to lease an extension line back to headquarters or elsewhere, they will be “on their honor” not to attach a wiretap instead of a pen register. About the only thing that can be said about this is that abuses have occurred in the past and human nature hasn’t changed. It’s somewhat ironic that the DPS is seeking a “tool” which will perhaps be feared more by the politicians who legalized wiretapping. Unsupervised use of the pen register on politician’s phones may cause those lawmakers who voted for wiretapping and against an amendment which would have expanded the act to cover public corruption and bribery to wonder if they have been double crossed by Clements and the DPS. How does all of this apply to the telephone company’s request for metered billing? If the phone company succeeds in getting metered billing, then pen registers will be a moot issue \(unless DPS and local law enforcement are using this as a company’s computers will be programmed for local calls as they now are for direct distance dial billing. The records will be there, both on incoming and outgoing calls, available, of course, to federal authorities. They will also be available through the subpoena process to Texas grand juriei and to other court proceedings. But worse from a privacy viewpoint, they may be subject to casual browsing by DPS, local police, and others who have connections with telephone security officers. The way to find out who a politician has been talking to will be to get someone who has a friend in telephone security to take a look. Or a more likely target for browsing wil be a reporter who is making things uncomfortable for a public figure. Existing technology makes the traditional pen register a crude tool. We are probably fortunate that Big Brother in Washington has not blessed us with a “telephone secrecy act” the way we were blessed with a bank secrecy act. Until such an act is passed which requires the telephone company to keep a record of all calls as banks are required to keep a copy of all checks, we at least have the possibility that Texas courts will construe Texas laws to provide some protection for individual privacy. And we probably face the certainty that if Texas Courts go the privacy route, Clements, Adams, and crew will be back next Legislative Session attempting to further Nixonize Texas Law. As best one can make out from the signs outside, the commercial structure at 311 Third Street in San Antonio is occupied by Dot’s Cafeteria, the Radio Car Co., and Testimonies of God’s Greatness, Inc. 1981. THE TEXAS OBSERVER 7
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