dissenting: I agree with the majority that the defendant has asked us to determine the scope of the protections under part I, article 19 of the New Hampshire Constitution by employing the reasonable expectation of privacy analysis in Katz v. United States, 389 U.S. 347 (1967). I further agree that this court has not yet decided that the Katz analysis reflects the content of article 19. See State v. Kilgus, 128 N.H. 577, 591, 519 A.2d 231, 240 (1986). Indeed, I have previously criticized the legitimate expectation of privacy analysis, at least as it relates to standing under article 19, as “no boon to the general administration of the criminal justice system ... or clearly defined constitutional rights.” State v. Settle, 122 N.H. 214, 219, 447 A.2d 1284, 1287 (1982). However, assuming, as does the majority, that an article 19 search is defined by Katz, I would conclude that the use of a pen register to monitor dialed telephone numbers is a search, and therefore must be based upon a finding of probable cause.
Part I, article 19 of the New Hampshire Constitution reads, in relevant part, that every person has “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” This court has recognized that article 19 protects a citizen’s right of privacy in his home. State v. Chaisson, 125 N.H. 810, 816, 486 A.2d 297, 301 (1984); State v. Bradberry, 129 N.H. 68, 76, 522 A.2d 1380, 1385 (1986) (Batchelder, J., concurring specially). Further, applying Katz, article 19 would extend to protect “people,, not places,” 389 U.S. at 351, and, more specifically, would protect information communicated by a person under certain circumstances against governmental intrusion. Id. at 353. Noteworthy as well is that in other contexts this court has articulated the extent to which the people of this State cherish their fundamental right to privacy. In Hamberger v. Eastman, 106 N.H. *199107, 206 A.2d 239 (1964), a civil case establishing the tort of invasion of privacy, Chief Justice Kenison observed, in quoting Ezer, that “no right deserves greater protection, for, as Emerson has well said, ‘solitude, the safeguard of mediocrity, is to genius the stern friend.’” Id. at 112-13, 206 A.2d at 242; Ezer, Intrusion on Solitude: Herein of Civil Rights and Civil Wrongs, 21 Law in Transition 63, 75 (1961). Just as tort law protects the privacy interests of citizens against the intrusions of one another, so must the constitution protect the privacy interests of citizens against the intrusions of government.
The United States Supreme Court has already decided, in a much criticized opinion, that under the Katz analysis the use of a pen register does not constitute a search so as to give rise to the protections of the fourth amendment. Smith v. Maryland, 442 U.S. 735 (1979). The Smith court held that the defendant had no subjective expectation of privacy in the telephone numbers he dialed, nor an expectation of privacy that society is willing to recognize. Id. at 745. The Court rested this conclusion on the premise that a defendant voluntarily discloses such information to the telephone company, and therefore assumes the risk that the data will be relayed to a third party, including the government. Id. at 744.
The majority here recognizes the weaknesses in the subjective expectation of privacy inquiry in Smith, as well as the problematic assumption-of-the-risk analysis. The majority, however, does not abandon the notion, critical to Smith, that the defendant voluntarily disclosed the data to the telephone company. Relying on the so-called agent-informer cases, the majority concludes that disclosing telephone number data to the telephone company is equivalent to divulging criminal secrets to an untrustworthy, albeit law-abiding, confidant. I disagree that when one dials a telephone there is a voluntary disclosure of a magnitude similar to that in the agent-informer situation. It can be argued that the majority cannot avoid the assumption-of-the-risk analysis, but rely on the agent-informer cases — the very cases that establish the assumption-of-the-risk approach. See United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302-03 (1966), reh’g denied, 386 U.S. 940, 951 (1967); Lewis v. United States, 385 U.S. 706 (1966), reh’g denied, 386 U.S. 389 (1967); Lopez v. United States, 373 U.S. 427, 439 (1963). The concepts of voluntary disclosure and assumption of the risk are inextricably intertwined, and I am of the opinion that neither exists in this situation.
*200The telephone is a necessary, but not always welcome, component of modern life. It is an indispensable tool for effective communication in today’s complex society. People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983). When a telephone call is made, the speakers have a reasonable expectation of privacy in the content of their conversation, whether the call is from a home, office, or public telephone booth. Katz, 389 U.S. at 359. This expectation is protected in our wiretapping and eavesdropping statute, RSA chapter 570-A. In the words of the Sporleder court: “[t]he concomitant disclosure to the telephone company, for internal business purposes, of the numbers dialed . .. does not alter the caller’s expectation of privacy and transpose it into an assumed risk of disclosure to the government.” 666 P.2d at 141. Disclosure to the telephone company of the number dialed is “simply the unavoidable consequence of the . . . use of the telephone as a means of communication and the telephone company’s method of determining the cost of the service utilized.” Id. The necessary, nonvolitional disclosure of certain facts to the telephone company for the purposes of using an instrument of private communication does not require the assumption that the company will voluntarily share that information with others, especially the government. Id. at 142.
It is clear that a person has little choice about whether the telephone company will have access to the numbers he dials and the frequency with which he dials them. Commonwealth v. Beauford, 475 A.2d 783, 789 (Pa. Super. 1984), appeal dismissed, 496 A.2d 1143 (Pa. 1985). As Justice Marshall stated in his dissent in Smith, “whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society.” 442 U.S. at 750 (Marshall, J., dissenting). “It is simply not enough to say, after Katz, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police.” Id. at 747 (Stewart, J., dissenting). I am convinced that a person using the telephone fully expects that the numbers he dials will remain as private as the content of the communication. The numbers provide a strong, sometimes conclusive, inference as to who is being called and with what frequency, unquestionably a private matter. A collection of such information can provide a virtual mosaic of a person’s private life. Sporleder, 666 P.2d at 142. A person certainly evidences no intention “to shed his veil of *201privacy” merely because he uses the telephone to make private contacts. Beauford, 475 A.2d at 789.
Although the foregoing provides support under the Katz analysis for requiring the use of a pen register to be based on probable cause, I believe the clear import of the language of article 19 mandates the same result. Article 19 protects a person’s “papers” from all unreasonable searches and seizures. “Papers” as tangible objects, however, have little or no intrinsic value. The value of “papers” rests in the content of the information contained in them. The mere advance in technology from paper as the medium for the flow of information to, for example, telephonic communications should not alter the protective force of article 19. Similarly, article 19 should not be limited to protections against the intrusive capabilities of the government at the time of the adoption of article 19. Rather, the areas of protected privacy must be examined and determined on a case by case basis in light of the technology available to the government at any given time. The protected rights, of necessity, become more sharply defined as science and technology broaden the scope of governmental power. In the end, I see no functional difference between government officials searching for and seizing a person’s papers, in the course of an investigation without the benefit of a warrant based on probable cause, and their monitoring the communicative activities of a citizen without the burden of similar requirements.
I would note finally that since the development of this case, the New Hampshire Legislature has amended RSA chapter 570-A specifically to authorize the installation and use of a pen register upon the satisfaction of certain procedural and evidentiary requirements. RSA 570-A:9-a (Supp. 1986). Although the statute permits a superior court judge to authorize such a use upon a showing of something seemingly less than probable cause, see RSA 570-A:9-a, II (judge must find that installation and use of pen register device is “reasonably calculated to further the investigation . . . .”), it is clear that the legislature has sought to provide further protection for the citizens of this State in the maintenance of the “proper balance between the State’s duty to protect the public and the individual’s right to privacy and free expression.” State v. Lee, 113 N.H. 313, 315, 307 A.2d 827, 828 (1973) (articulating the purposes behind the wiretapping and eavesdropping statute). Because I think the use of a pen register requires a prior showing of probable cause, I do not think the legislature has gone far enough in safeguarding the privacy interests of New Hampshire citizens. Nevertheless, it has undertaken to preserve what it perceives as an *202expectation of privacy in an area where the majority concludes that there is no such expectation.
I would hold, therefore, that a person does possess a reasonable expectation of privacy in the telephone numbers he dials, and that the use of a pen register to record such information is a search within the meaning of article 19. Accordingly, judicial authorization of the use of a pen register must be based upon a finding of probable cause. In this case, the defendants were entitled to have the information obtained through the use of the pen register and the fruits thereof excised from the supporting affidavits, and to have the probable cause determination based only on the remaining information.