Judge Leon says that the most important ground for distinguishing Smith is that we have a fundamentally different relationship with telephones today than existed in 1979. Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith v. Maryland: Information about numbers dialed using the device’s telephone functionality and when the call was made. (In FN57, Judge Leon says that he is unsure of whether the program collects location information, but he says nothing in his opinion depends on that question.) Although it’s true that we have different relationships today to items we label “phones” than we did to items labeled “phones” in 1979, that’s because of functions unrelated to the calling feature of those items.

Take the point Judge Leon makes that cell phones can be held up in lieu of lighters at rock concerts. Um, so what? Holding up a cell phone at a rock concert is not using the phone as a phone. It is not generating any records that the NSA collects.