Why Justice Gorsuch May Have Avoided the Word “Privacy” at the Carpenter Oral Argument

Late last month, the US Supreme Court heard argument in Carpenter v. United States. The issue presented was whether the Fourth Amendment requires the government to obtain a warrant before demanding that a cell phone service provider reveal location data about a target’s phone covering a period of 127 days. Among other things, the issue implicates the viability of two doctrines, the third-party doctrine and the Knotts doctrine. But independent of these precedents, the oral argument gives us a window into the thinking of the Court’s newest addition: Justice Neil Gorsuch. In this column, I will consider the two doctrines mentioned above and then turn to the question of how (and why) Justice Gorsuch would take the peculiar approach he does to protecting the Fourth Amendment right against unreasonable searches.

Doctrines

In Smith v. Maryland and United States v. Miller, the US Supreme Court ruled that when an individual surrenders private information or records to a third party, the individual thereby relinquishes Fourth Amendment privacy in that information or those records. The government may accordingly (and without a warrant or probable cause) demand that the third party (in those cases, the telephone company and the bank, respectively) hand over its records (of phone numbers dialed and of bank transactions, respectively) to the government. Another way of putting this is to say that the Court did not find any reasonable expectation of privacy in the data that a private person has handed over to third parties.

During the oral argument, Nathan Freed Wessler, the lawyer for the petitioner, Timothy Carpenter, tried to distinguish the third-party doctrine cases from this case, maintaining that the Court does not have to overrule Smith and Miller in order to find for his client. It might seem otherwise, though. If information you hand over to your telephone provider—such as the numbers you dial—becomes freely discoverable by the government, then why shouldn’t the locations where you take your cell phone, information that is also sent from your phone to nearby cell towers and then recorded by your provider—be discoverable for the same reason?

The lawyer argued that the facts in Carpenter’s situation differ for a few reasons. The first has to do with the sensitivity of the information, a matter on which he faced some disagreement from the bench because bank records are arguably more sensitive, not less sensitive, than one’s location out in public. The second distinction is that everyone knew, back when Smith was decided in 1979, that phone numbers dialed were passed along to one’s provider. With cell phones, by contrast, most people, according to survey data cited in the empirical scholars’ legal brief, do not realize that their cell phone’s location information is sent over to and kept by their cell phone service provider. One cannot be held to have consented, the argument goes, to the transmission of information of which one is unaware.

This is a difficult argument to make, however. People might have been unaware in 1979 that the telephone company would keep records of the local phone numbers that each person dialed. To be sure, the Supreme Court did say in Smith that “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company.” Yet even if the overwhelming number of customers knew, the Court failed to say that those who did not know might retain their privacy in their phone numbers (or bank records). Instead, after hypothesizing that everyone knows that phone numbers are conveyed to the telephone company, the Court said in Smith that “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not ‘one that society is prepared to recognize as reasonable.’” (citations omitted). The third-party doctrine seemed therefore to be normative rather than purely empirical. Handing information over to a third party, knowingly or ignorantly, forfeits one’s right to privacy in that information. This doctrine, which has rightly received its share of criticism, seems at odds with the result that Carpenter seeks in this case.

The second doctrine that poses an obstacle for Carpenter is the Knotts doctrine. In United States v. Knotts, the Supreme Court held that government tracking of a target’s automobile as it drives through public streets does not qualify as a Fourth Amendment “search” (or “seizure”) triggering warrant, probable cause, or reasonableness requirements. The Court reasoned that your car’s location on the public streets is visible to whoever happens to be around, and it follows that there is no right to privacy in the places where one’s car goes on the public streets.

In Knotts, however, the technology for tracking was primitive compared to the modern GPS. Indeed, responding to the concern that the Court was unleashing the possibility of around-the-clock surveillance, the justices explained that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Then in United States v. Jones, the Court ruled that using GPS technology to track a vehicle was a search that violated the Fourth Amendment because it was not authorized by a warrant.

The difficulty for Carpenter is that a 5-4 majority of the Court in Jones rested its ruling on the fact that the police had to trespass on the target’s vehicle (by placing a GPS tracker on the vehicle without permission) in order to be able to gather the locational data that it subsequently collected. This initial trespass, for the five justices in the majority, was why the resulting collection of data constituted a search. Only four justices, concurring in the judgment, would have found a Fourth Amendment violation independent of the trespass, based on the intrusiveness of the data gathering for twenty-eight days. Justice Sotomayor, who joined the majority, did indicate in a separate concurrence her own sympathy for the protection of privacy from long-term locational tracking, independent of the trespass, and she added that the third-party doctrine may need to be reconsidered.

In short, though the precedents seem, as they currently stand, to support a ruling for the government in Carpenter, there are indications that the justices may be open to revisiting existing doctrines.

Justice Gorsuch

Taking the transcript of the oral argument coupled with a familiarity with what some of the justices already think about the issue, it appears that a majority of the Court wants to reject the government’s position that its gathering of cell phone location data from a third party has no Fourth Amendment implications. At least Justices Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch seem to find convincing the argument that the government may not ask cell phone service providers for location data without triggering Fourth Amendment protection. But the different justices may have distinct paths to reaching this conclusion.

The justices who spoke up spent much of the argument talking about Fourth Amendment privacy. There is a reason for this. Since the Supreme Court decided United States v. Katz, the Court has discussed most searches as invasions of “reasonable expectations of privacy,” language taken from Justice Harlan’s concurring opinion in Katz. Privacy has long had a connection to property, of course, because owning land and erecting walls and a roof over that land provides privacy that then carries Fourth Amendment protection from unwelcome intrusions, as do other kinds of property (like cars and luggage). But property has been neither necessary nor sufficient for protection from unreasonable searches.

Police could carry out a warrantless trespass onto a person’s open field, under Oliver v. United States, without thereby violating the Fourth Amendment right against unreasonable searches. At the same time, the Fourth Amendment does require a warrant when police gather information about the inside of a person’s home with a thermal detection device, though use of the device requires no physical intrusion into anyone’s property. Likewise, in Katz itself, the Court ruled that the warrantless recording of a phone conversation made from a public phone booth by attaching a tape recorder to the outside of the booth violates the Fourth Amendment, notwithstanding the lack of any physical intrusion and the lack of any property interest at stake.

I mention these principles because Justice Gorsuch seemed intent at oral argument on analyzing the Carpenter facts in terms of property (or property-derived privacy) rather than pure privacy. At several points, he asked a litigant to put aside the “reasonable expectation” framework and talk instead about property. He specifically proposed that if someone were to get their hands on the cell location data connected to a particular individual, then that someone might be guilty of “conversion” (theft) of property jointly owned by the person to whom the cell phone belonged and the service provider. In the entire oral argument, on my count, Justice Gorsuch used the word privacy only twice, whereas he spoke of property many times.

Is that choice of framework by Justice Gorsuch noteworthy? It would appear to be, if one considers the intuitive reason we might object to the government’s demanding from a third party data containing our moment-to-moment whereabouts over four months’ time. Most people would say, I think, that the government is invading our privacy by demanding such information. We would like our whereabouts to remain unknown, because people can construct a disturbingly thorough picture of our lives by knowing all the places where we have gone over a period of months. Having police gather that information about us accordingly violates what we would likely think of as our legitimate expectation of privacy.

For an analogy, think about visiting a psychiatrist and telling her that you are having an extramarital affair. Imagine that the psychiatrist decides that what you have told her makes for great gossip, and she begins spreading word of your affair around your (shared) neighborhood. You look around and can tell from the way people who know you avert their eyes that they have heard about your secret.

You will likely be angry at your psychiatrist for sharing what was supposed to be for her ears only. You will feel the sting of a privacy invasion. As Justice Gorsuch might describe it, however, the problem here is that the psychiatrist has taken information that you and she held jointly as property and perhaps unlawfully permitted other people to acquire that property for their own use. This formulation, however, fails to capture what is wrong with what the psychiatrist has done, because the information about your affair—like the information about where you were at all times during the last four months—is not something valuable to you that you own and use, like a car or a couch. It is something personal that you prefer not be known by anyone other than the person in whom you have confided. And the reality, moreover, when it comes to your whereabouts is that even though your cell phone service provider “knows” this information, there is generally no human who is aware of it unless you raise a question about your account. And it is humans, like federal agents but unlike computers belonging to a service provider, who can invade another’s privacy.

What’s the Matter With Privacy?

Given that we can best describe the government’s behavior in Carpenter as invading a reasonable expectation privacy (rather than as a property-based violation), why is Justice Gorsuch avoiding the privacy framework? Why is he, indeed, seemingly uncomfortable with the very word “privacy,” asking the litigant to put aside the “reasonable expectation” (rather than the “reasonable expectation of privacy”) framework, as though the word “privacy” were profane. The answer, I suspect, has something to do with substantive due process.

The Supreme Court has developed a privacy doctrine under the Due Process Clause of the Fourteenth and Fifth Amendments. Though it could have done the same under the Ninth Amendment or through a different device, it rested on Due Process to recognize that people have privacy rights that the government is obligated to respect. Such rights include opposite-sex marriage, same-sex relationships and marriage, procreation, contraception for married people and for the unmarried, and abortion, further developed here. It also, the Court has suggested, includes the right to refuse medical treatment and to have a ventilator turned off or artificial food and hydration stopped.

There is a connection between these substantive privacy rights and the more procedural privacy protected by the right against unreasonable searches. Part of the point of enjoying privacy from government spying and intrusion is to be able to exercise substantive rights, such as the entitlement to procreate (or to engage in sexual relations without procreating). The Court asks rhetorically in Griswold, “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The reasoning here is that when substantive behavior such as the use of contraception by married people is subject to criminal prohibition, then police armed with a warrant may search for evidence of that behavior in the marital bedroom, where such conduct is likely to take place. To effectively protect privacy from spying, then, it is necessary to recognize at least some activity as substantively protected privacy in addition to granting privacy from warrantless searches. And conversely, to give true protection to the exercise of constitutionally protected privacy rights, there must be spheres of procedurally protected privacy into which the government ordinarily may not enter without a warrant.

Though we do not have a clear record from Justice Gorsuch on whether he believes there is a constitutional right to abortion, few entertain any doubts. And we do know that Justice Gorsuch opposes any right to assistance in dying. To be fair, the Supreme Court itself, in Washington v. Glucksberg and Vacco v. Quill , has refused to recognize this right, but perhaps if suffering truly cannot or will not be ameliorated for those in the end stages of their lives, the Court might change its mind on this. But privacy, in any event, encompasses much more than abortion and the right to die.

Justice Gorsuch’s apparent embrace of a counterintuitive property formulation to decide Carpenter rather than an established and far more fitting reasonable expectation of privacy framework, does not bode well for the whole collection of substantive privacy protection. Justice Gorsuch may be rejecting privacy as a constitutional principle, existing separately and independently of the right to property. If so, we can expect that he—perhaps with the help of Chief Justice Roberts, Justice Alito, Justice Thomas, and whoever replaces the next justice to retire from the Supreme Court—will return us to the days when a legislature could prohibit not only abortion but the use of contraception, not only physician assistance in dying but a patient’s decision to refuse unwanted medical treatment. A Brave Old World may be awaiting us.