Thoughts on property and positive law after the Carpenter oral argument

Justice Neil Gorsuch seems to have surprised and concerned some observers during yesterday's oral arguments in Carpenter v. United States. He came out with a number of questions quite skeptical of the government's position, but focusing on reasons that Carpenter might have a property right in his personal cell-site records. These included both provisions of federal law and possibly state common law. Here are the key exchanges—first, with Carpenter:

JUSTICE GORSUCH: Mr. Wessler, I'm sorry, one quick question. Focusing on the property-based approach, putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? So say—say a thief broke into T-Mobile, stole this information and sought to make economic value of it. Would you have a conversion—would your client have a conversion claim, for example, under state law? Have you explored that at all?

MR. WESSLER: So I—I think it's possible. And I think conversion is the—the closest -­

JUSTICE GORSUCH: Uh-huh.

MR. WESSLER:—sort of tort analog to what we have here. But we—we placed the source of the property right here in federal law, not state law.

JUSTICE GORSUCH: No, I understand 222. I've got that argument. I'm just wondering have you—have state courts developed this at all?

MR. WESSLER: State—state courts have not, to my knowledge. I think in roughly analogous contexts, like trade secrets -­

JUSTICE GORSUCH: Right.

MR. WESSLER:—certainly conversion applies -­

JUSTICE GORSUCH: Right.

MR. WESSLER:—but not directly here.

and with the government:

JUSTICE GORSUCH: Mr. Dreeben, I'd like to—I'd like to drill down on that and return to Justice Kagan's question. You know, the facts here wind up looking a lot like Jones. One thing Jones taught us is—and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach. So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague, so that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen. Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

MR. DREEBEN: I suppose that if you are insisting that I acknowledge that it's a property right, some consequences are going to follow -­

. . .

JUSTICE GORSUCH: But let's say that, in fact, I've got positive law that indicates it is a property right. Would you there, therefore, agree that that's a search of my paper and effect?

MR. DREEBEN: I wouldn't, and I -­

JUSTICE GORSUCH: But why not?

MR. DREEBEN: Because it's not your paper or your effect.

JUSTICE GORSUCH: If property law says it is.

MR. DREEBEN: Well, I don't think property law does say that it is. And I think that -­

JUSTICE GORSUCH: Well, that's fighting the hypothetical, counsel. And I know I—I didn't like hypotheticals, too, when I was a lawyer sometimes, but I'm asking you to stick with my hypothetical.

MR. DREEBEN: Justice Gorsuch, I think that the problem with the hypothetical is that it creates a property interest out of transfers of information.

JUSTICE GORSUCH: Please—please, could you stick with my hypothetical and then you can tell me why it's wrong.

MR. DREEBEN: All right.

JUSTICE GORSUCH: Under my hypothetical, you have a property right in this information. Would it be a search of my paper and effect? Yes or no.

MR. DREEBEN: I am not sure. And the reason that I am not sure is there has never been a property right recognized in information that's conveyed to a business of this character. If we were talking about e-mail, as Your Honor's opinion in Ackerman sought to analogize to property, I think we would have a more complex discussion about it. I'm not sure that it would achieve any different result.

JUSTICE GORSUCH: You're not here to deny that there might be a property interest and, therefore, a search?

MR. DREEBEN: No, I am—I'm here to deny there's a property interest in cell site information about e-mail -­

JUSTICE GORSUCH: In my—in my hypothetical, if there were a property interest, you're not here to deny that that would be a search of my paper and effect?

MR. DREEBEN: I'm not here to concede it either.

JUSTICE GORSUCH: Okay.

MR. DREEBEN: And the reason that -­
(Laughter.)

MR. DREEBEN: The reason that I can't concede it is it's a property right that resembles no property right that's existed.

As I suggested before argument, I think this is a very helpful way to think about alternatives to the third-party doctrine, and I have little to add besides three observations:

1. The "property" label can sometimes be misleading.

Gorsuch's questions were pitched in terms of a "property right," which is understandable. Some of the paradigm cases at the Founding involved property; the court's precedents in Jones and Jardines talk about property. But figuring out what technically makes something a "property right" as opposed to a different kind of personal or private right is very tricky, and not actually connected to the original meaning of the Fourth Amendment, I think. So long as one's person, house, papers or effects are at issue, the Fourth Amendment is best read to protect them from unreasonable government license.

As we noted in our article, at the Founding, Fourth Amendment protection was keyed off of positive law rights. And these were not always property law in the strict sense—for instance, the printers arrested in the paradigm case of Wilkes v. Wood sued not just for a property violation, but also for false imprisonment. For this reason, I find it more helpful to talk in terms of positive law rights (some would say "private" rights) rather than property.

But nothing too important rides on this, so long as we remember what James Madison wrote in his essay "Property":

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage. . . .

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

2. Whose effects?

The government expressed some resistance to the idea that these are specifically Carpenter's papers or effects—skepticism also expressed by Mike Rappaport and Orin Kerr. And it is true that Carpenter may not possess these records, and perhaps never did. But whether one calls them property or positive law, looking at the generally applicable legal rights here suggests that they do belong to Carpenter. He is the one who possesses a cause of action under 47 U.S.C. 207, and he is the one given the right to block or order disclosure under 47 U.S.C. 222. The non-disclosure requirements seem obviously to have been enacted for Carpenter's benefit. And I would not be surprised if Gorsuch's hypotheses about conversion were right, too.

3. The use of the positive law model in Carpenter need not be particularly radical.

The positive law model article that James Stern and I wrote last year has been criticized, most recently by Orin, as "pretty radical," and "revolutionary," in part because of its categorical nature. For instance, we would give credit even to positive law rights that are not specifically about privacy. Maybe we're right about that, maybe we're wrong. But Carpenter doesn't really implicate that debate, because the legal protections for cell-site records seem quite related to privacy, and indeed the federal statute specifically refers to "privacy."

So the alleged radicalism of our views does not mean that using positive law here would be so radical. Much as I might wish it were otherwise, this case does not really call upon the justices to adopt our scholarly theory. It could be decided the same way under many different theories of the relevance of positive law.

Relatedly, while I believe that the positive law model is consistent with the original meaning of the Fourth Amendment, one does not need to be an originalist to find positive law a helpful guidepost. As Kagan put it in her concurrence in Florida v. Jardines, "The law of property naturally enough influences our shared social expectations of what places should be free from governmental incursions." The same might be true of generally applicable law in the digital realm.