I would like to talk to you guys about the expectation of privacy that underlies the Fourth Amendment. What is the expectation of privacy?

Essentially, this is the rule that was developed in the Katz case that is usually used to underpin when you're talking about a search that's covered by the Fourth Amendment. In other words, searches that would require either probable cause and, or a search warrant in most cases in order to be conducted. And what I want to talk to you about is some surprising things that are actually not protected by the Fourth Amendment.

One particular one that I think would surprise you is your call details. And this has been the law for quite a while.

There's an old set of cases called the Pen Register cases that actually cover this exact situation. And essentially what the holding in the Pen Register cases was, is that because you voluntarily share the numbers that you dial with the telephone company, you do not have a reasonable expectation of privacy in those numbers.

Now I want to be clear. I'm not talking about the content of your phone call. That's called wiretapping, and that's a different subject entirely. And that does require a warrant. What I'm talking about is the numbers that you dial, that appear on your telephone bill when you get your bill at the end of the month.

Those numbers, you do not have an expectation of privacy. The technical term for that is called traffic analysis. But essentially it's who you called and how long you talked to them, and who called you and how long you talked to them. That is not protected by the Fourth Amendment, interestingly enough.

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