Is 1976 Robbery Legally Relevant to NSA Spying?

The small-time case of a Baltimore purse-snatcher who got nabbed after crank-calling his victim in 1976 laid the legal groundwork for today's worldwide government surveillance of telephone records in the name of protecting the U.S. from terrorists.

The Supreme Court eventually heard the case of Michael Lee Smith, ruling that the government was allowed to collect his phone records to tie him to the purse-snatching. And since the Sept. 11, 2001 terror attacks, the National Security Agency has used that case to justify the collection of "metadata" -- the duration of calls and the phone numbers used to make and receive them -- of hundreds of millions of Americans and foreigners.

But a federal judge and even the prosecutor who pressed for the purse-snatcher's conviction say the government has gone too far. Now, it may well take a new Supreme Court ruling to settle whether the Baltimore case more than three decades ago can apply to global government surveillance.

"To say that a small-time robbery on the street is a precedent for what was then unforeseen and massive electronic surveillance is simply a stretch, to put it mildly," says former Maryland Attorney General Stephen H. Sachs, who defended the government's use of phone records to arrest and convict Smith during an argument in front of the Supreme Court. The court sided with him in a 5-3 ruling in 1979. One justice abstained from the case.

"For present purposes, you have to say that the trapping of information from one suspect is different, for God's sake, than trapping the data of every American who uses a telephone or the Internet," Sachs said in an interview Tuesday. "There's a distinction of volume, of context. But that's what the Supreme Court is going to have to decide."

Senate Intelligence Chairwoman Dianne Feinstein also invited the Supreme Court to...

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