I am a medical doctor and confidentiality is the cornerstone of our ethical system. Not just because it is the right thing to do but also for a practical reason: Patients won't give you an accurate medical history (homosexual encounters or drug and alcohol use, for example) if they think you will report it to the authorities. Can't Congress see that taking away all corporate responsibility for client confidentiality undermines citizens' trust in the system? - mchebert

With the "system" being our democracy, in the case of our private communications and warrantless government surveillance. Furthermore, beyond Congress, can't the Supreme Court see that giving private information to another, with the implicit understanding that said information will be held as private, except to the extent needed to perform the service for which it was tendered, is a real-world necessity that must be respected if we are to honor the intent of the Fourth Amendment?

The majority who ruled to the contrary in 1979's Smith v. Maryland, regarding old-fashioned pen register technology (implemented without a warrant), didn't see that. To wit:

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as reasonable." Katz v. United States... This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E.g., United States v. Miller...[et al].

.

In Miller, for example, the Court held that a bank depositor has no "legitimate 'expectation of privacy'" in financial information "voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business." 425 U.S. at 442. The Court explained: "The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id. at 425 U. S. 443. Because the depositor "assumed the risk" of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Naturally, this is the case nominally cited by the Bush administration's legal parsers - according to yesterday's brilliant WSJ expose (by the former 'NSA reporter' for the Baltimore Sun) - as they try to justify the wholesale government collection and storage of our "transactional" details from private and public databases nationwide - travel databases, financial databases, telephone and email record databases, etc. EFF yesterday helped illuminate a few of the laws the NSA and Congress have conveniently ignored (along with FISA) in blind pursuit of their domestic spying objectives, behind the vanishingly-thin cover provided by the Supreme Court's Smith holding:

Http://www.eff.org/deeplinks/2008/03/law-checking-wsj-article-domestic-spying

The three dissenters in Smith say it best (Justice Stewart here):

It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy.

[snip]

The numbers dialed from a private telephone -- although certainly more prosaic than the conversation itself -- are not without "content."

Justice Marshall here:

In so ruling, the Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government.

.

In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society.

[snip]

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.

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

As Suzanne Spaulding notes in the WSJ article, this Fourth Amendment-central definitional issue - about the import of unwarranted collection and surveillance of detailed private "transactional" information versus full message content surveillance - cries out for public debate and analysis. The fact that (some) Members of Congress have known the details of the widespread unwarranted domestic spying the WSJ article exposed, and just kept mum about it - basicallly accepted it without public debate - appalls me. Even the 'line' people at the NSA clearly have concerns - but their corrupt political overseers have no such qualms, and Congress is mostly siding with the overseers - as they do with regard to Iraq - instead of talking and listening to those who are forced to implement the flawed policies emanating from the White House.

What galls me even more is the seemingly wholesale disrespect and lack of appreciation for the whistleblowers who are laying it on the line for their country and Constitution in this matter by managing, with great difficulty, to get this stunning information out to the public - most recently in yesterday's bombshell of a WSJ front-page expose. Members of Congress reveal their hypocrisy here - as they piously pretend to be pushing a federal reporter shield law on behalf of whistleblowers, rather than for the benefit of the industrial conglomerate campaign contributors who own the national media companies, while simultaneously giving the back of their hand to the whistleblowers who are desperately trying to be heard in our Congress about the current FISA fiasco (see http://dailykos.com/storyonly/2008/3/10/23471/1547/951/473990).