Last month, the US Supreme Court held in Carpenter v. United States that if the government wants to get a person’s cell-site location information (CSLI) from his wireless carriers, then the government must first have a search warrant. CSLI records reveal the approximate location of a cellphone at frequent intervals, along with a time to match each location, whenever the phone is on. This is information, the Court said, in which a person holds a reasonable expectation of privacy.
The decision was to some extent predictable, because the Court had previously held in United States v. Jones, that attaching a GPS device to a person’s car and then using the device to monitor the car’s location requires a warrant. Although the Court based Jones on a trespass theory, at least five justices joined onto or expressed sympathy with the proposition that police had violated a reasonable expectation of privacy.
There were, however, some small surprises in Carpenter. One was the limited departure from the third-party doctrine. This doctrine provides that if a person shares private information with a third party, she thereby forfeits Fourth Amendment privacy in that information. The Court said in Carpenter that it was not eliminating the third-party doctrine but was moved by the degree of the intrusion not to apply it in that particular case.
Disappointing but not surprising was the confirmation that Justice Gorsuch wished to distance himself from the “reasonable expectation of privacy” approach to the Fourth Amendment.
Brief Review of Facts and Decision
Timothy Carpenter was convicted of several robberies. An important part of the government’s evidence consisted of the defendant’s phone records, which his wireless carriers had handed over to the government under court order. These records showed that Carpenter had been in the vicinity of a number of robberies when they occurred.
Carpenter moved unsuccessfully to suppress the records on the ground that obtaining them constituted a Fourth Amendment search for which the government lacked the required warrant and probable cause. The case made its way up to the high court, which held in Carpenter’s favor.
The Vulnerability of Privacy
The Court has protected privacy as a component of the Fourth Amendment since at least 1967. In Katz v. United States, police attached an electronic listening and recording device to the outside of a public telephone booth and were thereby able to listen to Katz’s side of a conversation. In that conversation, he was engaged in transmitting wagering information by telephone across state lines.
The Supreme Court held that, contrary to the view of prior precedent (Olmstead v. United States), such surveillance violated the Fourth Amendment, because it interfered with privacy, even though there was no physical intrusion into any constitutionally protected area (such as a house, person, paper, or effect).
That decision and Justice Harlan’s concurrence in it have provided the rubric for analyzing Fourth Amendment search claims for many decades, until Justice Scalia began reimagining the right at issue as more directly connected to property. In Jones, Justice Scalia wrote for a five-justice majority, choosing not to reach the question of whether the search at issue implicated any reasonable expectation of privacy.
In Jones, the government had attached a GPS device to a person’s car and then used that device to monitor the car’s whereabouts for 28 days. Justice Scalia explained for the Court how the case could be resolved by considering the original meaning of the Fourth Amendment. He did so by reference to the trespass on property involved in attaching a device to a car and subsequently gathering information from it.
Justice Alito authored a concurrence in the judgment mocking the notion of using original understanding to resolve a thoroughly modern GPS dispute, relying instead on the “reasonable expectation of privacy” in freedom from the extensive locational monitoring that GPS technology allows.
After Jones, I thought that Justice Alito would join the pro-privacy majority opinion once the issue of locational tracking without a trespass arose. After all, he had treated Jones as such a case, relegating the trespass on property to a sideshow with little constitutional significance. He marveled at the granting of Fourth Amendment protection against “attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation,” while potentially leaving people unprotected from long-term monitoring of their whereabouts in the absence of a technical trespass.
Though Justice Gorsuch seems quirky on Fourth Amendment issues, he made clear during the oral argument in Carpenter that he would be a skeptical voice on the protection of privacy through the Constitution. Indeed, he barely used the word “privacy” during the oral argument for this case. It was clear, as I suggested in my last column on Carpenter, that Justice Gorsuch was uncomfortable with protecting privacy, at least conceived of as such. He preferred to protect Fourth Amendment rights by looking to the text and original meaning.
Why might Justice Gorsuch be skeptical of privacy? Well, we know now—if there was ever any doubt about this—that he is not an ardent supporter of the right to abortion. That is presumably why he came out the way he did on crisis pregnancy centers in NIFLA v. Becerra. Such centers are places that some women have visited in the mistaken belief that they could get an abortion there. The Court found a First Amendment right on the part of those centers to refuse to give women information about subsidized and available abortion providers, invalidating the California law requiring centers to distribute or otherwise make available this information.
If one considers an abortion patient to be essentially a woman hiring an assassin to kill her baby, then one will not force a peaceful conflict manager (whom the woman has visited by mistake) to post a flier listing the assassin’s name, number, and discounted pricing on the wall of the conflict manager’s office, so that the woman can easily visit the assassin instead. If, on the other hand, one views abortion as a constitutionally protected, privacy-related, medical procedure, and one views abortion opponents as offering patients religion in place of medicine, one would take a very different position on the required posting of affordable medical alternatives. One might even regard crisis pregnancy centers as places that traffic in something akin to fraud and manipulation.
Most would guess too that Justice Gorsuch is no fan of same-sex marriage. That may be why he not only joined the Court’s opinion deciding against the gay couple who attempted unsuccessfully to buy a wedding cake in Masterpiece Cakeshop v. Colorado Civil Rights Commission but wrote separately as well. In his concurrence, he drew out the supposed equivalence between selling standard wedding cakes to straight couples while denying them to gay couples, on the one hand, and refusing to create a cake bearing a custom, nonstandard message of anti-gay bigotry motivated by religion, on the other.
Yet these two situations are not truly comparable. Unlike the owner of Masterpiece Cakeshop, who would not sell a wedding cake to a gay couple, the secular baker was willing to sell any of his cakes to any interested customers, including religious homophobes. He refused only to design a cake that expressly communicated a homophobic message, independent of who the customer might be and why he might have wanted a cake bearing such expression.
I mention Justice Gorsuch’s (and the Court’s) abortion-related and anti-gay discrimination-related opinions in the context of Fourth Amendment privacy because they are linked. I have argued that the reason that people have privacy in particular places is in part because people do protected private things in those places. Discussions of “privacy” accordingly do and should cover both the bedroom (“houses” in the Fourth Amendment) and the use of contraception in the bedroom (substantive due process privacy in the Fourteenth Amendment).
Justice Gorsuch might have feared that protection of one’s locational information in the name of “privacy” could support the many rights identified with the same name, so he rejected the Fourth Amendment claim at issue.
It is hard to know what exactly to make of the Court’s decision. It is good news that the justices decided to protect locational privacy even in the absence of a physical trespass. It is also good that the Court set aside the third-party doctrine, at least for this case.
Recall that the third-party doctrine provides that when a person gives material to a third party, she thereby forfeits her privacy interest in that material for Fourth Amendment purposes. The Court has applied the doctrine to bank records, in United States v. Miller, and phone numbers dialed, in Smith v. Maryland, but it chose not to do so here, because of the extremity of the privacy invasion involved. One can hope that the Court will set aside the doctrine again in the future.
It is good news as well that Chief Justice Roberts wrote the opinion for the Court.
We cannot know how long privacy will survive. The four justices in dissent in Carpenter will remain four justices in dissent when Justice Kennedy’s successor joins the Court. But on abortion and perhaps the denial of LGBT rights, the Chief Justice may be on the other side of the divide, joined by a probably-more-conservative colleague in a matter of months.
On the new Court, there could well be five votes for watering down substantive conceptions of privacy. Troubling in and of itself, such a development could ultimately pose a threat to Fourth Amendment privacy as well.