(Today's "travel ban" decision was another pathetic partisan divide. The 5 Republicans vs the 4 Democrats. We'll discuss that next. But first, this privacy/search & seizure milestone.)
Now, that decision may not seem so earthshaking. Well of course that's a search! Well of course the Constitution generally requires a warrant and probable cause for a search! Well of course the government shouldn't be allowed to examine the data that my cellphone company has about my cellphone's location in order to monitor my every movement--unless it has some good reason (i.e., probable cause) and gets a warrant!
Well, you might think so, and the Supreme Court now agrees. Yes, now, and by a mere 5-4 vote!
Chief Justice Roberts was the deciding vote in Carpenter. He joined the Court's 4 liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and he assigned himself the opinion for the resulting majority. His opinion was a milestone. Not only for the particular result in the case--to repeat, government must get a warrant supported by probable cause in order to track a person's movements through cellphone location data. But also because Roberts re-invigorated one of the Court's foremost privacy-protecting landmarks. And because he declined to apply the Court's privacy-limiting precedents.
As for the 4 dissenting Justices, they all authored their own opinions presenting different arguments why Roberts and his majority were wrong.
[We've discussed at length in New York Court Watcher the nonsense--and dangerous nonsense at that--of the Supreme Court's search and seizure jurisprudence that has developed over the past few decades. It has developed largely in order to avoid excluding evidence obtained from unconstitutional searches. So the Court has disingenuously ruled that many searches are not really "searches" and, therefore, that they are not subject to constitutional protections.
A police helicopter hovering over your backyard to search your property--that's not a "search." A search of your private property away from your house--that's not a "search." A search of all the contents of your garbage put out for pick-up--that's not a "search." A search by police canines sniffing your body--that's not a "search." And lots more. No, none of these are "searches" according to Supreme Court decisions
Consequently, in such "not-a-search" situations, the 4th Amendment's prohibitions against unreasonable searches and seizures just don't apply. The government need not get a warrant or have probable cause or even have some reasonable suspicion. No, nothing! No justification whatsoever is required for these searches under the Constitution because, the Court has told us, they are not really "searches."
Yes, it's hard to believe until you actually read these decisions.
(See Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1); The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal; The GPS Decision--The Video)]
Let's consider the search & seizure case law particularly relevant to the issue in Carpenter.
The 4th Amendment of the Constitution protects against "unreasonable searches and seizures." In furtherance of that protection, it declares that "no Warrants [to conduct searches or seizures] shall issue, but upon probable cause." In it's 1967 landmark decision in Katz v. U.S., the Supreme Court ruled that the 4th Amendment "protects people, not places." That amendment, the Court elaborated, was intended to protect the legitimate privacy interests that people have in a free society--not the limited items that happen to be specifically mentioned in that amendment.
The Court in Katz was adopting the view expressed in one of the most famous dissents in Supreme Court history, authored by one of the truly great Justices in that history--the dissent of Louis Brandeis in Olmstead v. U.S. (1928). The majority in Olmstead held that the Constitution provided no protection against government eavesdropping on the defendant's private phone conversations. No warrant needed. No probable cause needed. The reasons? Conversations are not one of the "tangible' or "material" "things" specifically mentioned in the 4th Amendment. Also, the outside telephone wires that the government tapped belonged to the telephone company, not to the defendant.
Brandeis rejected that reasoning. He argued, in these oft-repeated lines, that the Constitution "conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Nearly 40 years later, in the Katz landmark, the Court overruled Olmstead and similar decisions, and it embraced Brandeis's view of protected privacy. Henceforth, all government intrusions upon legitimate expectations of privacy would have to be justified--by probable cause supporting a warrant.
In the decades that followed Katz, as "law and order" Justices were being appointed and the Court was retrenching from decisions that were protective of the rights of the accused, the Court variously and persistently diluted that landmark. So, for example, the Court adopted the so-called "third party doctrine." In short, if you allow someone else to have information about you--e.g., your bank has records of your transactions and your phone company has records of the numbers you've called or which have called you--then you have no Katz privacy rights in that information, even from a government investigation. And so the 4th Amendment provides no protection.
(I'm not saying that follows logically, but only saying that's what the Court has ruled.)
Then there's the curious reemergence of (what I will call) the "not specifically mentioned doctrine" and, relatedly, the "trespass doctrine." In these latter dilutions of Katz--actually breaks from it--the Court has insisted, for example, that while the 4th Amendment specifies "houses" for protection, it does not mention the private property beyond a house. So there is no 4th Amendment protection for the deceptively labelled "open fields"--i.e., actually any private property a homeowner has beyond the immediate area of the home itself. The Court has also insisted that the 4th Amendment is really about property rights and about preventing the government from "trespassing"--i.e., physically invading without permission--upon one of your "tangible" "things" that are mentioned in that amendment. So, only nonconsensual invasions of your person (body), house, papers (documents), or effects (personal property). No "trespass" on one of those? Then no 4th Amendment protection.
Sooooo, under the "third party doctrine," since you've "allowed" your bank and your phone company to have records about you, the government doesn't need a warrant or probable cause--or any other justification--to search your records. Also, because your private property beyond your house is not mentioned in the 4th Amendment, the same thing. And as long as the government does not "trespass" upon you or your car (which is an "effect" or personal property), apparently no warrant or probable cause is required to conduct unlimited surveillance on your comings and goings.
That's was state of 4th Amendment search and seizure jurisprudence when the Court was deciding the cellphone location data issue in Carpenter.
So how exactly did Chief Justice Roberts reach the result he did for the Court's majority? Here's an outline of the critical highlights:
- Roberts stated the issue in the case succinctly and without any ideological slant at the outset: "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements." [My emphasis whenever in bold.]
- He then described the purpose of the 4th Amendment in terms of privacy and the Court's privacy-protective landmarks:
- "The 'basic purpose of this Amendment,' our cases have recognized, 'is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967)." and
"In Katz v. United States, 389 U. S. 347, 351 (1967), we established that 'the Fourth Amendment protects people, not places,' and expanded our conception of the Amendment to protect certain expectations of privacy as well."
- Roberts then declined to apply the Court's 2012 decision in the GPS tracking case, U.S. v. Jones, in terms of Justice Scalia's majority opinion which had characterized the 4th Amendment in terms of trespass upon property rights. (I.e., Scalia wrote that the GPS monitoring of the driver's movements implicated the 4th Amendment because government officials had physically trespassed on his car by attaching a GPS device without his consent--not because electronically monitoring his movements without a warrant was an intrusion upon his privacy rights. In fact, Scalia disparaged Katz as a "deviat[ion]." See The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal.)
- Instead, Roberts emphasized that 5 Justices in Jones had underscored the "privacy concerns" underlying the 4th Amendment--i.e., Justice Alito's concurring opinion, joined by Ginsburg, Breyer, and Kagan, arguing that Katz governed the case and denouncing Scalia's disinterment of the trespass doctrine as outmoded and long overruled; and Sotomayor's lone concurring opinion, joining Scalia but also applying Katz.
- Reaffirming the view of those 5 Justices--a majority of the Court--instead of Scalia's "trespass doctrine," Roberts noted that, "Since GPS monitoring of a vehicle tracks 'every movement' a person makes in that vehicle, the concurring Justices concluded that 'longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy'.”
- Then, addressing the "third party doctrine," Roberts explained that at the time those earlier precedents about bank records and phone records had been decided in the '70's, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements. We decline to extend Smith [bank records] and Miller [phone records] to cover these novel circumstances."
- Roberts elaborated further on the extent and implications of cellphone data on 4th Amendment privacy rights: "[A] cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. Virtually any activity on the phone generates [location information], including incoming calls, texts, or e-mails and countless other data connections that a phone automatically makes when checking for news, weather, or social media updates. Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume the risk' of turning over a comprehensive dossier of his physical movements...The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment."
- Finally, lest there be any doubt that the Chief Justice intended to re-enforce the privacy rights character of the 4th Amendment and, simultaneously, to re-inter the outmoded views that had already been overruled in Katz (but were nevertheless re-embraced in Scalia's majority opinion in Jones--the GPS case), Roberts returned to Brandeis and his dissent in Olmstead: "As Justice Brandeis explained in his famous dissent, the Court is obligated—as '[s]ubtler and more far-reaching means of invading privacy have become available to the Government'—to ensure that the 'progress of science' does not erode Fourth Amendment protections. Olmstead v. United States, 277 U. S. 438, 473–474 (1928)."
- Justice Kennedy argued that the "third party doctrine" precedents should be applied, and that they "dictate that the answer is no" 4th Amendment "search" was conducted in this case.
- Justice Thomas, echoing the majority opinion in Olmstead--rather than the Brandeis dissent--argued that the question in this case was "whose property was searched," and the cellphone location data belonged to the cellphone company, not to the defendant.
- Justice Alito argued that a subpoena for the cellphone company to present records--which was involved in this case--did not implicate the same privacy concerns as would an actual search of the defendant's premises, papers, or personal property.
- Justice Gorsuch argued against Katz as being at odds with the original meaning of the 4th Amendment and unworkable. Instead, "if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection"--but not with regard to the cellphone company's records or your location and movements.
So there it is. I know this was a bit long and detailed. But this decision is so vitally important for fundamental privacy protection amidst such extraordinary and extraordinarily rapidly advancing technology.
As far as the Supreme Court itself is concerned, the significance of this case includes being decided by a bare majority, Chief Justice Roberts being the deciding vote, his siding with the 4 liberal Justices, his rejecting the application of older precedents to answer a modern technological question, his even rejecting a recent majority opinion--by Justice Scalia--that sought to resurrect an old view of the 4th Amendment, and his leaving no doubt that the privacy concerns expressed in Brandeis's dissent in Olmstead (not the Court's decision in that case) and later adopted in Katz are the governing principles of the 4th Amendment.
As for the dissenters, Justices Kennedy and Alito argued in favor of applying previous decisions of the Court that would have precluded the reach of Katz to this case and, presumably, to other analogous intrusions made possible by advancing technology. Justices Thomas and Gorsuch would abandon Katz--largely or entirely--and would restrict 4th Amendment protections to its original or literal limits, regardless of the changed realities of the modern world.
So one vote made the difference. A departure of one of the liberal Justices--and the retirement of the elder Ginsburg or Breyer in the not too distant future is certainly a possibility--or even of the Chief Justice, would likely result in the Court's narrowing of the Carpenter decision. A fortiori if the departing Justice is replaced by the current President or by a conservative successor. In fact, if such were to occur, it is likely that those antiquated "third party" and "trespass" and "not specifically mentioned" doctrines would be rehabilitated and applied to constrict constitutional privacy protections.
That thought--at least to me--is dismaying. But for today, the Carpenter decision is cause for celebration and some hope.