surveillance in 1979. Smith v. Maryland has only very limited, very marginal relevance to the program we are discussing now.

It will probably take a long time and quite a few decisions, but eventually, the Supreme Court will realize that this massive surveillance is incompatible with the Constitution on a number of grounds.

Not only does it deprive individual Americans of their innate right to express themselves freely with each other, but it elevates the executive branch of our government far above the others by giving the executive the authority to collect the metadata on anyone serving in the other branches as well as anyone running for office for the legislature. Thus the separation of powers is jeopardized, actually nonexistent when the executive can spy on the members of the other branches of government. So we have a constitutional crisis. A lot of people don't understand that, but that is where we are. Smith v. Maryland has nothing to do with the current situation. It dealt only with the Fourth Amendment issues and its use in convicting a criminal. It did not concern collecting information on law abiding citizens with absolutely no reason to do it other than that it is possible o do it.

In Smith v. Maryland, Thurgood Marshall dissented saying among other things:

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U.S. at 389 U. S. 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 357 U. S. 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 695 (1972); id. at 408 U. S. 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, [Footnote 3/2] I am unwilling to insulate use of pen registers from independent judicial review.

. . . .

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., post, p. 442 U. S. 746, and MARSHALL, J., post, p. 442 U. S. 748, filed dissenting opinions, in which BRENNAN, J., joined. POWELL, J., took no part in the consideration or decision of the case.

http://supreme.justia.com/cases/federal/us/442/735/case.html

About Thurgood Marshall:

http://en.wikipedia.org/wiki/Thurgood_Marshall

He was a liberal and one of the most distinguished and best Supreme Court Justices in the history of our nation.

It is not uncommon that the Supreme Court confronting new facts turns to a dissent in a former case for guidance in issuing an opinion. And the Thurgood Marshall dissent in Smith v. Maryland is an excellent dissent, well reasoned.

The facts in this massive surveillance system that permits analysis all the metadata to create a picture, a sketch of someone under surveillance and their connections are very different from those in Smith v. Maryland in which a suspect's telephone records were obtained without a subpoena. In Smith v. Maryland, the police were examining the records of a specific person without a warrant. They were not just willy-nilly examining all connections of most of the communications of masses of people. They did not have the computer capacity to handle that much information.

So I would not count on Smith v. Maryland's precedent. The facts are very different. Smith v. Maryland might carry the day in some decisions for a few years, but if we continue to have anything resembling our current constitutional government, Smith v. Maryland will eventually be overturned, I think, at least with regard to this massive surveillance.

In addition to everything I have already explained, the authorities who are collecting this so-called metadata have the ability to make a lot more sense of it by using computers than they did in 1979. I would also like to point out that in 1979, the government was not collecting the metadata of members of Congress or of members of the judicial branch of government.

This new surveillance does not just raise 4th Amendment issues but also raises 1st Amendment and other human rights issues as well as separation of powers issues. Thurgood Marshall -- as usual a visionary who saw much further than his contemporaries on the court.

Sorry if I am rambling. It is getting late.