XDA

Not that long ago (I used to see it on The Andy Griffith Show) you would talk to a real person from your phone and tell that person whom you wanted to talk to; that person, the operator, would then make the manual connection of your phone to the phone of the person you wanted to talk to. Now we do all that with robot switching stations, but you still give the information of what phone you want to ring to a third party (the phone company) by sending out electronic pulses of the phone number (dialing has pretty much gone the way of the live operator).

It has been the course of Fourth Amendment analysis to look at the expectations of privacy the citizen has (and decide if it's reasonable) rather than look at the textual "persons, houses, papers, and effects" in the Constitution, as amended. It's pretty much establish that you can't have a reasonable expectation of privacy in something you tell a third party--that person is always free to tell someone else. The Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979) looked at phone number records a different way--getting the number is not a search--but the result is the same. You have no reasonable expectation of privacy in the numbers you dial.

Orin Kerr at Volokh has an analysis of the laws dealing with the subject. It doesn't appear to be much of a question to me, but he's not as sanguine. If the phone company turns the records over voluntarily, what is the problem?

Of all the tempests in a teapot that we have witnessed in Washington in the last couple of years, the recent media and Congressional hyperventilating about an NSA database of the records of numbers called is the least significant. It's almost as if they're ignorant or posturing.