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Neil Gorsuch Joins Sonia Sotomayor in Questioning the Third-Party Doctrine

In a case involving cellphone location data, Gorsuch says entrusting information to someone does not mean surrendering your Fourth Amendment rights.

Jonathan Ernst / Reuters / NewscomJonathan Ernst / Reuters / NewscomAs Damon Root noted earlier today, Justice Neil Gorsuch's dissent from Carpenter v. United States reads more like a concurrence, agreeing with the majority's conclusion that police generally need a warrant to obtain cellphone location data but disagreeing with its reasoning. In fact, Gorsuch is bolder than the majority, recommending a broader reconsideration of the doctrine that says the Fourth Amendment imposes no limits on the government's access to information that people entrust to third parties. At the same time, Gorsuch agrees with Clarence Thomas, who also filed a dissent in Carpenter, that it makes little sense to draw the boundaries of Fourth Amendment rights based on expectations of privacy that judges deem reasonable.

The Supreme Court developed the third-party doctrine in United States v. Miller, a 1976 case dealing with bank records, and Smith v. Maryland, a 1979 case involving "pen registers" that record the phone numbers called from a particular location. As the Court explained the principle in Miller, "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Gorsuch recognizes the sweeping implications of that principle in an age when sensitive information is routinely stored on remote servers:

What's left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did....

Can the government demand a copy of all your e-mails from Google or Microsoft without implicating your Fourth Amendment rights? Can it secure your DNA from 23andMe without a warrant or probable cause? Smith and Miller say yes it can...But that result strikes most lawyers and judges today—me included—as pretty unlikely.

Sonia Sotomayor, who joined the majority opinion in Carpenter, expressed similar concerns in United States v. Jones, the 2012 decision that said monitoring a suspect's movements by attaching a GPS tracker to his car counts as a "search" under the Fourth Amendment. In that case, Sotomayor observed that the third-party doctrine is "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."

Gorsuch notes that "the Court has never offered a persuasive justification" for the third-party doctrine. A person's willingness to share information with someone else for a particular purpose does not imply that he is willing to share it with the world, and his awareness of the risk that it will nevertheless be divulged to others does not give those people permission to peruse it. Gorsuch draws an analogy to paper mail, which the Supreme Court since the 19th century has recognized as protected by the Fourth Amendment because the sender entrusts it to the postal service for delivery. The content of letters is protected even though people surrender possession of them and understand that they may be vulnerable to snooping.

Gorsuch is equally leery of linking Fourth Amendment rights to a "reasonable expectation of privacy," as the majority does in Carpenter. That standard, which was invented in the 1967 eavesdropping case Katz v. United States, is hard to apply in a principled way, since everything depends on which expectations count as reasonable, a question judges may not answer the same way most people would. "Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence," Gorsuch writes, citing a couple of examples (citations omitted):

Take Florida v. Riley, which says that a police helicopter hovering 400 feet above a person's property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because "[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public." But the habits of raccoons don't prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager.

Gorsuch also notes that the Katz test has little to do with the text of the Fourth Amendment, which makes no mention of expectations or of privacy per se. Rather, the amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." That guarantee, as Thomas shows in his dissent, is intimately related to property rights. "This case should not turn on 'whether' a search occurred," he writes. "It should turn, instead, on whose property was searched."

For Thomas, the answer is clear: The property belonged not to Timothy Carpenter, whose location records were used to implicate him in a series of armed robberies, but to MetroPCS and Sprint, the companies that provided his cellphone service. Gorsuch, by contrast, thinks it's "entirely possible a person's cell-site data could qualify as his papers or effects under existing law." He notes that federal law treats those records as "customer proprietary network information," which people generally cannot obtain without the customer's permission.

Gorsuch sees advantages to "a Fourth Amendment model based on positive legal rights," as advocated by a brief the Institute for Justice filed in Carpenter, which draws on the work of law professors William Baude (University of Chicago) and James Stern (William & Mary). Under that model, the Fourth Amendment is implicated whenever the government seeks special access to information that ordinary people cannot legally see without the subject's consent. That approach offers a promising alternative to the infinitely malleable Katz test, which invites judges to constitutionalize their own privacy preferences, and a Fourth Amendment that covers your data only as long as you retain physical possession of it.

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  • hpearce||

    " "the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Gorsuch recognizes the sweeping implications of that principle in an age when sensitive information is routinely stored on remote servers:"

    The fact information is easier to obtain should not affect the principle by which prior decisions were made.

    And yes, technology does make information easier to obtain -even if you wish it didin't

  • ipsquire||

    Assuming you agree that "reasonable expectation of privacy" is a "principle" then it seems you'd agree that highway speed limits should be "cantor" and "gallop". What's reasonable changes over time because technology. I'd have more sympathy if you were talking about "reasonable" with respect to heteronormative legal standards where public opinion is the only thing changing reasonableness.

  • Just the Tip||

    Great write-up. I don't follow every SC decision closely enough to make a blanket statement, but Gorsuch certainly strikes me as the most principled member of the court. Trump is still a mixed bag but the appointment of Gorsuch was a home-run.

  • Hank Phillips||

    With fewer pretexts for asset forfeiture seizures both looter parties will suffer fewer temptations to violate the Bill of Rights in search of pelf, boodle, loot and bribes. Voting libertarian is the lever that will move the world in the direction of individual rights.

  • shane_c||

    Im seeing conflicting interpretations of what his dissent means. One is positive like this piece, but the other is that he's just being a typical conservative thats narrowly interpreting the 4th to not include cell phone data and saying it should be up to Congress to decide not 'activist judges'. My sense is the later is the correct interpretation but I'll wait to see what someone more expert has to say.

  • Merl3noir||

    Not sure where you are seeing these conflicting interpretations. The 2 articles here in Reason both seem to indicate that his dissent was more siding with the majority, but for different reasons, in that they did not go far enough. I have seen else where that just say who voted how, and they say Gorsuch filed a dissenting, leaving people to assume a lot about how he stands on the issue.

  • shane_c||

    There's different opinions on other forums and here at the Volokh conspiracy. Im waiting to see what Prof Volokh has to say.

    It seems like he was doing everything he could to avoid the idea of "the right to privacy". I think that may be because he wants to set up a position to take on other issues like abortion... And he dissented, that's what matters. Everything else he says almost seems like an excuse or a distraction. He just throws a bunch of possibilities out there but doesn't commit to anything. You could do that with every right and dissent because it just isn't the right case or argued the right way and we'd lose a lot of freedoms.

  • ipsquire||

    Where's the gap between privacy as described by Griswold, Katz and Lawrence, versus Gorsuch's "whose property was searched" inquiry? The facts from Lawrence seem to have the same result. Katz facts should also end up protecting information that third parties aren't free to use/disclose, but how the facts of Griswold come out is a little less clear to me.

  • shane_c||

    He'd find a gap because Im almost positive Gorsuch would have dissented in Lawrence, and Roe, and maybe even Griswold... I think that's why he doesn't like the right to privacy because he doesn't like the outcome those kinds of cases.

  • gah87||

    Nice writeup, Jacob.
    As in the Wayfair ruling, the SCOTUS is taking on a modern-day interpretation of the Constitution, especially around interstate commerce and property rights. That will be a big challenge. In 1789, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," meant something different technically -- but no different conceptually -- than it does today.

    If SCOTUS is to remain relevant in the 21st century, it must review the Constitution in light of technological advancement.

    And it must protect us from legislative and executive overreach in the areas of the 1st and 4th Amendments.

  • Sevo||

    "...In 1789, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," meant something different technically -- but no different conceptually -- than it does today.
    If SCOTUS is to remain relevant in the 21st century, it must review the Constitution in light of technological advancement."

    Pretty sure I agree, but to make certain:
    The intent (1789) was to protect the populace from government power, and what you wish is to have SCOTUS maintain those protections, regardless of changes in technology.
    Such as protection of the press from government power, even now when 'the press' is you or me tapping on that keyboard.

  • Sevo||

    I thought this was dealing with the Libertarians. Or the Greens.

  • Bubba Jones||

    Don't some jurisdictions ban rummaging through curb side recycling bins?

  • Imissbuckley||

    Great Article. I'd like to believe that if one of the Justices who are more "fair-weather" friends to the 4th Amendment would've joined Alito, Thomas, and Kennedy, that Gorsuch would've provided the 5th Justice for Sotomayor''s Majority opinion via a concurring opinion. I wonder why he didn't do that now.

  • Eidde||

    OK, so Gorsuch indicates that he may have ruled against the guy who got spied on, but the guy who got spied on (i. e., his lawyers) failed to raise the proper kinds of argument, relying on a legal theory Gorsuch rejects rather than on a more promising legal theory which Gorsuch would probably support.

    As part of the adversary system, if your lawyer doesn't raise an issue, the court can't help you based on that issue. All you can do is sue your lawyer.

  • Eidde||

    Gorsuch may have ruled *for* the guy who got spied on, but (etc)

  • JFree||

    Gorsuch is the defender of the 4th Amendment as played by the Soup Nazi.

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