Conservative members of Congress who recently questioned special counsel Jack Smith complained and chastised him for having spied on those members. By “spy,” they meant that Smith had gotten some of their calling records from phone companies. The documents indicated the numbers that had been called from the congressional offices, the numbers of those who had called the offices, and the duration of the calls on and around January 6, 2021. The content of those conversations was not revealed. The politicians seemed to be unaware that getting such records is routine practice in criminal investigations.
The Constitution’s Fourth Amendment prohibits unreasonable search and seizures. The Supreme Court has held that the protection applies when a person has a “reasonable expectation of privacy.” The Court further held that people have such expectations in their phone conversations. Thus, the government cannot wiretap into phone calls and hear what was said unless a warrant based on probable cause has first been obtained.
When I make a phone call, I do not divulge the content of the conversation to the phone company, but I do disclose other information, such as the number I called and, for billing purposes, the duration of the call. The Supreme Court has held that I do not have a reasonable expectation of privacy in this information, now often called metadata, because I know that I have given these data to the phone company. This judicial conclusion left such information outside Fourth Amendment protection.
Congress stepped in, but it was a small intercession. The new law said that a judicial order had to be obtained before getting this information, which comes from a device often call a “pen register,” which records the outgoing information of the number called, or a “trap and trace” device for recording the numbers of incoming calls. The government must now get a judicial order, but the burden is low. The government does not have to show, as it would for a search warrant, probable cause that a crime has been or is being committed. Instead, the government attorney only has to certify that the information sought is likely to be “relevant to an ongoing criminal investigation.”
Such orders for this phone information are common. Tens of thousands of such orders are issued each year. I am not aware of conservative Congresspeople previously complaining about this practice. That has changed not because the conservatives have become concerned about the privacy implication of pen registers for ordinary Americans. Instead, they are concerned because they have learned that such orders have been used to get information about the their own congressional calls. As long as only others were affected, they had no concern. But when the conservatives in Congress were affected, an outcry ensued.
An old joke concludes that a conservative is a liberal who has been mugged. Apparently, a civil libertarian is a conservative who has been affected by a standard law enforcement investigation.
