It began as an ordinary purse snatching. On an early Baltimore morning in 1976, a local street thug crouched alongside his green Monte Carlo, pretending to change a flat, biding his time. Finally, a young woman passed by walking alone to her suburban home. Smith wrenched her handbag from her grasp, jumped into his car and tore off down the street before the young victim could glimpse his license plate.
The perp, Michael Lee Smith, was apprehended weeks later, thanks in part to the police department’s use of a machine known as a “pen register” to track the threatening phone calls the assailant had started making to his victim. The court wrangling that followed, however, would continue for three years, and eventually land on the docket of the U.S. Supreme Court. In 1979 the court upheld Smith’s conviction, and his 10-year prison term.
Almost 35 years later, the court’s decision — in a case involving the recording of a single individual’s phone records — turns out to be the basis for a legal rationale justifying governmental spying on virtually all Americans. Smith v. Maryland, as the case is titled, set the binding precedent for what we now call metadata surveillance. That, in turn, has recently been revealed to be the keystone of the National Security Agency’s bulk collection of U.S. telephone data, in which the government chronicles every phone call originating or terminating in the United States, all in the name of the war on terror.
“When they started quoting Smith in the NSA investigation and inquiry, I was flabbergasted,” says James Gitomer, who was one of Smith’s two lawyers at the Supreme Court. ”I don’t think this case should be used as the foundation to justify the NSA. It doesn’t apply.”