Edward Snowden is a computer nerd that could be finding his way to court sometime in the future. The big news of the week is Snowden’s leak that the CIA and other intelligence agencies, have been mining “metadata” of the American public. Essentially, intelligence agencies have been gathering and analyzing data on which websites you visit, how often, and so on. In reality though, and what most coverage on this issue seems to omit, is that a lot of this goes back to a 1970s Supreme Court case titled Smith v. Maryland and a 19th century device called a “pen register” that was used on telegraphs.
A pen register is essentially a pen attached to an armature and electromagnet, so that the pen marks on a strip of paper information from electromagnetic pulses. Thus, the “pen” part of “pen register” was a fountain pen. Pen registers were important to telegraphs in reading the pulses as information and writing it down for people to read. Later, as telephones came about, a pen register could still record information from the electromagnetic pulses used in dialing a telephone number. Therefore, a pen register could record which phone numbers were dialed by a particular phone, although it couldn’t say anything about the contents of the conversation. Dialing a number sends out electromagnetic pulses, the pen register writes them down, end of story. Of course, as technology developed, pen registers became more sophisticated, and not just by using a ballpoint instead of a fountain pen. They eventually got rid of pens for a printing device, and later still became electronic. Yet we still call them “pen registers” the same way we still call movie previews “trailers” even though it has been decades since we started showing them before a movie instead of afterwards. Names can stick.
Still, people were upset about this practice when it came to light in the 1970s. In view of the Fourth Amendment protection against warrantless searches, this practice was challenged in the case of Smith v. Maryland that went up to the Supreme Court in 1979. In Smith, the Court found that a pen register did NOT violate the Fourth Amendment protections. In other words, in 1979 the Supreme Court gave it’s blessing for law enforcement to proceed with using pen registers without needing to get a warrant first. They were impressed by the fact that only the phone numbers were recorded, not the contents of the conversation. Furthermore, the Court reasoned that since someone conveys to the phone company what number they want to dial, there could be no reasonable expectation of privacy in the phone numbers you dial.
There was a Pen Register Act in 1986 that codified their use under Federal Law, but still no Fourth Amendment protection, no exclusion of evidence. As the Internet grew in popularity there was some question as to whether something analogous to pen registers would be allowed with the Internet. After all, the basic technology of reading electromagnetic pulses to track phone numbers dialed was quite a bit different than tracking someone’s web activity. Yet, in 2001, this question was put to rest when the Patriot Act expanded the definition of pen registers to include those that would work with Internet surveillance. That has been the accepted practice now for over ten years. [It is somewhat comical that instead of introducing a new law that allowed the government to snoop on websurfing, the government instead redefined a 19th century device consisting of an armature, electromagnet, and fountain pen, into something that can track websurfing.]
Thus, the public outcry, Snowden’s indignation over the practice, and protests over the alleged violation of our Constitution are somewhat misplaced, or at least a little late. Intelligence agencies have had the explicit ability to comb through your internet traffic without a warrant since the Patriot Act of 2001. They’ve known about the Spanking Coeds site you visit for years. Just like the police have had the explicit ability to put a pen register on your phone without a warrant since the 1970s, they can do the same with your Interweb activity. It doesn’t start in 2013 or with Snowden or PRISM. It all goes back to the Patriot Act, Smith in the ’70s, and a 19th century device used with telegraphs: the pen register.