A few observations. First, "pen register" data, or non content information is covered by Smith v. Maryland vis a vis the Fourth Amendment ONLY. The statutes cited relate to non-constitutional privacy protections of these records - protections which were either ignored or avoided by the actions of the administration.

If we want to repeal these laws because of concerns about terrorism, then by all means, propose this, and debate it in Congress. Moreover, we have extraordinarily flexible and effective tools for obtaining virtually ANY information we want/need in close to real time either by subpoena, search warrant, administrative subpoena, FISA order, or even National Security Leter -- all of which carry the potential of neutral judicial review. The classified program has NO judicial review, and no individualized review. The issue is NOT binary - protect privacy or catch terrorists. It is, and should be catch terrorists AND protect privacy. Al Queda is the enemy - not the American people, and certainly not the federal judiciary.

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