The Third-Party Doctrine in Privacy Law

Chapter 23

THE THIRD-PARTY DOCTRINE:

ORIGINS AND APPLICATIONS

Analog Phone Metadata - 

Smith v.

Maryland, 

442 U.S. 735 (1979)

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2

What is the 

Katz

 Test?

•

1) … whether the individual, by his conduct, has “exhibited an

actual (

subjective) expectation of privacy

,”—whether, in the words

of the Katz majority, 

the individual has shown that “he seeks to

preserve [something] as private.”

•

2) The second question is whether the individual’s subjective

expectation of privacy is “one that society is prepared to recognize

as ‘reasonable—whether, in the words of the Katz majority, the

individual’s expectation, viewed objectively, is “justifiable” under

the circumstances.

•

Remember this for Gorsuch’s dissent in Carpenter.

What did Phone Users Know About the

Privacy of the Numbers They Call?

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“Telephone users, in sum, typically know that they must convey

numerical information to the phone company;

•

that the phone company has facilities for recording this

information; and

•

that the phone company does in fact record this information for a

variety of legitimate business purposes.

•

Although subjective expectations cannot be scientifically gauged,

it is too much to believe that telephone subscribers, under these

circumstances, harbor any general expectation that the numbers

they dial will remain secret.

•

Everyone still remembered phone company operators.

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Miller

 on bank records:

•

‘‘The depositor takes the risk, in revealing his affairs to

another, that the information will be conveyed by that person

to the Government. . . . 

This Court has held repeatedly that

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.’’ 

(United States v. Miller, 425 U.S. 435 (1976) )

5

What did the 

Smith

 court say about the

defendant's expectation of privacy?

•

[E]ven 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.’’’

6

Did 

Smith

 make new law?

•

Prior to 

Smith

 federal agents had been able to get third-

party data without a warrant or court order.

•

While 

Katz

 did not change this practice, the reasonable

expectation of privacy in 

Katz

 raised the question of how

to apply the reasonable expectation of privacy test in

other circumstances.

•

Smith

 only recognized that the long-term status quo of

obtaining third-party records without a warrant was still

good law.

7

Smith

 and the Data Revolution

•

Smith is 10 years before the earliest days of the public Internet.

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The first personal computers have just gone on the market.

•

Apple 1 goes on sale in 1976

•

US$666.66 (equivalent to $3,032 in 2020)

•

Large data sets are stored on centralized IBM computers and storage is

expensive.

•

Email is through corporate services run by telecom companies such as the

Bells and MCI.

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Widely available/free email was in the future.

•

The amount and extent of third-party data was relatively limited, and

most of it, other than phone numbers, would have been familiar to James

Madison.

8

The Dissent’s Warning – Is this Really

Assumption of Risk?

•

Implicit in the concept of assumption of risk is some notion of

choice. 

At least in the third-party consensual surveillance cases,

which first incorporated risk analysis into Fourth Amendment

doctrine, the defendant presumably had exercised some

discretion in deciding who should enjoy his confidential

communications. By contrast 

here, unless a person is prepared

to forgo use of what for many has become a personal or

professional necessity, he cannot help but accept the risk of

surveillance. It is idle to speak of “assuming” risks in contexts

where, as a practical matter, individuals have no realistic

alternative.

Can the Government Undermine the

Expectation of Privacy?

•

More fundamentally, to make risk analysis dispositive in assessing

the reasonableness of privacy expectations would allow the

government to define the scope of Fourth Amendment protections.

For example, law enforcement officials, simply by announcing their

intent to monitor the content of random samples of first-class mail

or private phone conversations, could put the public on notice of

the risks they would thereafter assume in such communications.

•

[This is a particular problem for new means of communications,

such as email, text, app-based communication, etc.]

Applications of the Third-

Party Doctrine

We are discussing this section before

Carpenter

 because 

Carpenter

 reviews

some of this law.

11

Telephone Conversations

•

There is a statutorily created expectation of privacy in the content of

telephone calls, which has also been recognized as a constitutional

right because it is become the reasonable expectation.

•

The telecom companies do not routinely record the content

telephone calls so there is no retrospective search of phone calls

unless the data has been collected with that in mind.

•

VOIP (voice over Internet) calls have recently been determined to be

information services, not telecom services. The legal status of VOIP

calls is murky.(

Charter Advanced Services LLC v. Lange

)

12

E-mail Content: 

U.S. v. Warshak

, 631

F.3d 266 (6th Cir.(Ohio) 2010

•

Warshak was convicted based on the evidence in his emails

 that

were obtained from his ISP without a probable cause warrant, but

consistent with the requirements of the 

S

tored Communications

Act.

•

He appealed, arguing that he had an expectation of privacy in his

emails - 

to the extent that the Stored Communications Act

 allowed

warrantless access to his emails, he argued it was unconstitutional

.

13

The Stored Communications Act (1986)

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The Stored Communications Act provided an expectation of privacy for

email held on remote servers for less than 180 days.

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Email left on the server for more than 180 days was assumed to be

abandoned and could be obtained without a probable cause warrant.

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The SCA was passed long before cloud email. In the early days email was

not left on the server but was downloaded to the user’s computer and

cleared from the server.

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Commercial email systems charged per message and for server

storage.

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It was expensive to leave mail on the server so email over 180 days old

was likely abandoned.

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Now most people have no local copy of their mailbox.

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Hint – make a local copy of your mailbox.

•

Thunderbird – free email app that downloads your Gmail.

14

15

The Court's Assumption

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Like telephone conversations, 

simply because the phone company

or the ISP could access the content of e-mails and phone calls, the

privacy expectation in the content of either is not diminished

,

because there is a societal expectation that the ISP or the phone

company will not do so as a matter of course.

•

For years Gmail sent you advertising based on the content of your

email.

16

Can the ISP change the customer’s

reasonable expectation of privacy?

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Why does the contract with the ISP matter?

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What about email on the employer's computer?

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What about email on the University system?

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Does it matter whether the ISP really looks at the

email, or only has the right to?

•

What about Gmail - how is Google like the NSA when

it comes to email?

The Court’s Ruling

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The court found that the defendant had a reasonable expectation of

privacy in all of his email, including email over 180 days old.

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To the extent that this conflicts with the SCA, the SCA is

unconstitutional.

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Because the government complied with the SCA in good faith, the

evidence was still admissible, and the conviction was sustained.

•

While the Supreme Court has not ruled on this yet, Justice Gorsuch’s

dissent in 

Carpenter

 assumed that it should be the law.

•

This protection does 

not

 extend to work, university, or other email

services which contractually limit your expectation of privacy.

•

There is no expectation of privacy for your email in the recipient’s email

system.

17

E-mail Headers, Addressing Information,

and URLs

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Email metadata which includes addressing

information, routing information, and in some cases

locational URLs, looks a lot like 

Smith

 case phone

metadata.

•

The courts have found that this is available without a

probable cause warrant.

18

Text Messages

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Text messages are content and for many people are the new phone

call.

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The law seems be clear that there would be an expectation of

privacy in text messages but the Supreme Court case on point was a

special circumstances case.

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The court said there was a reasonable expectation of privacy, but

the text was on a phone that belonged to the defendant’s

employer – the police department.

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There is no expectation of privacy as to employer provided

technology.

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There is no expectation of privacy on the recipient’s phone.

19

Voiceprints and Voice Data Stored by

Smart Speakers

•

Do you allow you smart speakers such as Amazon Echo, Google Home, or Apple

Homepod to eavesdrop on your life?

•

Have you granted them access to your smart phone calendar and contacts or

your e-mail account?

•

 Do you permit them to share your voiceprints with their manufacturer to

“improve” recognition?

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Have you ever looked at the “history” of your voice commands (or of overheard

conversations) that your speaking can create?

•

Have you ever purged that history, if you can?

•

These questions all present many of the same issues addressed in this chapter,

with the added nuances that the device may record some speech that you do

not “voluntarily” wish to convey to it and that the device is undeniably your

property located inside your home.

Carpenter v. United States,

138 S. Ct. 2206 (2018)

This was an unexpected bombshell in

privacy law. Its effects are just beginning

to percolate up through the district

courts.

How Strong is 

Carpenter

?

•

Judgment: Reversed and remanded, 

5-4

, in an opinion by Chief

Justice Roberts on June 22, 2018. 

Justice Kennedy filed a dissenting

opinion, in which Justices Thomas and Alito joined. Justice Thomas

filed a dissenting opinion. Justice Alito filed a dissenting opinion, in

which Justice Thomas joined.

•

Two of the 5-4 majority have been replaced with extremely

conservative judges.

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Justice Gorsuch’s dissenting opinion is a wild card, but can he get

any support from the new judges?

22

Cell phone basics in 2018 (paraphrased

Supreme Court version)

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There are 396 million cell phone service accounts in the United States — for a

Nation of 326 million people.

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Cell phones connect to a set of radio antennas called “cell sites.”

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Cell sites typically have several directional antennas that divide the covered

area into sectors.

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Cell phones continuously scan their environment looking for the best signal,

which generally comes from the closest cell site.

•

Each time the phone connects to a cell site, it generates a time-stamped

record known as cell-site location information (CSLI).

•

The precision of this information depends on the size of the geographic area

covered by the cell site. The greater the concentration of cell sites, the smaller

the coverage area. CSLI is collected on calls, text, and internet connections.

•

This data is created and retained

 by companies for their own use and for sale.

25

The Data

•

The data: Location of the cell phone during connection by

triangulated the towers that connect to the phone.

•

Where will this location data be most accurate? (Where do

you have the most towers?)

•

What offsets the usefulness of this accuracy in these areas?

•

The Uses

•

Sale of aggregated data to marketers and others.

•

Network maintenance.

•

Roaming surcharges.

•

Specific data to the police and surveillance agencies.

26

Carpenter in the Lower Courts

•

In 2011, police officers arrested four men suspected of robbing a series of

Radio Shack and (ironically enough) T-Mobile stores in Detroit.

•

The suspect identified 15 accomplices who had participated in the heists

and gave the FBI some of their cell phone numbers; the FBI then reviewed

his call records to identify additional numbers that he had called around

the time of the robberies.

•

Carpenter’s cell data put him near four robberies.

•

Carpenter was charged with six counts of robbery and an additional six

counts of carrying a firearm during a federal crime of violence.

•

After Carpenter unsuccessfully moved to suppress the cell-site data

provided by the wireless carriers, he was convicted at a trial. The conviction

was affirmed on appeal, and the Supreme Court granted certiorari.

27

The Question before the

Court

“The question we confront today is how to

apply the Fourth Amendment to a new

phenomenon: the ability to chronicle a

person’s past movements through the

record of his cell phone signals.”

28

The GPS Tracking Case: 

United States v.

Jones

, 565 U.S. 400 (2012)

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29

The Alternative Reasonable Expectation

of Privacy

 (

Katz

) test

•

I would analyze the question presented in this case by asking

whether respondent’s reasonable expectations of privacy were

violated by the long-term monitoring of the movements of the

vehicle he drove.…

•

ALITO, GINSBURG, BREYER, KAGAN in Jones

•

Would this be undermined by cars having OnStar and other

satellite-based location services?

•

Does it depend on whether they do real time tracking?

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Once the technology is in use, will the courts assume that

people’s expectation of privacy changes to include it?

30

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31

Is the Cell Phone Location Data

Something New?

•

But while the third-party doctrine applies to telephone numbers and

bank records, it is not clear whether its logic extends to the

qualitatively different category of cell-site records.

 After all, when

Smith was decided in 1979, 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.

32

Alito from 

Jones

: GPS tracking Versus

Traditional Surveillance

•

Prior to the digital age, law enforcement might have pursued a

suspect for a brief stretch, but doing so “for any extended period

of time was difficult and costly and therefore rarely undertaken.”

For that reason, “society’s expectation has been that law

enforcement agents and others would not — and indeed, in the

main, simply could not — secretly monitor and catalogue every

single movement of an individual’s car for a very long period.”

•

[Does administrative cost = expectation of privacy?]

33

Data Mining and the Matrix Theory of

Intelligence

•

The matrix theory is that individual pieces of information that do not

have strategic value in themselves, may, taken with other pieces of

information, reveal classified information.

•

As we will see later, this is used to keep seemingly innocuous

information classified.

•

Data mining allows the government to gain intrusive information by

correlating information from many sources that are available

through third-parties.

•

While court did not put it in terms of data mining, the record of

cell phone locations is the same idea – pieces of data that have

low value alone become much more intrusive when put together.

What Can We learn From

Comprehensive Location Data?

•

Mapping a cell phone’s location over the course of 127 days provides

an all-encompassing record of the holder’s whereabouts. As with

GPS information, the time-stamped data provides an intimate

window into a person’s life, revealing not only his particular

movements

, but through them his “familial, political, professional,

religious, and sexual associations.”

•

[Can you get this with just one user’s data?

•

What does it contemplate about the use of this data?]

35

What Does Roberts Tell Us About the

Cost Issue?

•

And like GPS monitoring, cell phone tracking is remarkably easy,

cheap, and efficient compared to traditional investigative tools.

With just the click of a button, the Government can access each

carrier’s deep repository of historical location information at

practically no expense.

36

Why is CLSI More Concerning Than Automotive

GPS Tracking?

•

Unlike the bugged container in [

United States v. Knotts

, 460 U.S. 276

(1983)] or the car in 

Jones

, a cell phone — almost a “feature of

human anatomy,” 

Riley

, 573 U.S., at –––– (slip op., at 9) — tracks

nearly exactly the movements of its owner. 

While individuals

regularly leave their vehicles, they compulsively carry cell phones

with them all the time. 

A cell phone faithfully follows its owner

beyond public thoroughfares and into private residences, doctor’s

offices, political headquarters, and other potentially revealing

locales.

•

Are there parts of the US where a lot of people do not routinely

travel in their own cars?

37

Do the Cell Phone Companies Track

Supreme Court Justices?

•

Critically, because location information is continually logged for all of

the 400 million devices in the United States — 

not just those belonging

to persons who might happen to come under investigation

 — this

newfound tracking capacity runs against everyone. 

Unlike with the GPS

device in Jones, police need not even know in advance whether they

want to follow a particular individual, or when.

38

The Accuracy Problem with CLSI

•

The Government and Justice Kennedy contend, however, that the

collection of CSLI should be permitted because the data is less precise

than GPS information. 

Not to worry, they maintain, because the

location records did “not on their own suffice to place [Carpenter] at

the crime scene”; they placed him within a wedge-shaped sector

ranging from one- eighth to four square miles.

•

[Meaning that it is not a search because it requires analysis to make

sense of the data.]

39

Should the Need for Analysis (Processing)

Matter?

•

Yet the Court has already rejected the proposition that “inference insulates

a search.” 

[

Kyllo

 v. United States, 533 U.S. 27, 36 (2001).]

•

From 

Kyllo

, 

not in the book

:

•

 As for the dissent’s extraordinary assertion that anything learned through

“an inference” cannot be a search, see 

post

, at 4—5, that would validate

even the “through-the-wall” technologies that the dissent purports to

disapprove. 

Surely the dissent does not believe that the through-the-wall

radar or ultrasound technology produces an 8-by-10 Kodak glossy that

needs no analysis (

i.e.

, the making of inferences). 

And, of course, the novel

proposition that inference insulates a search is blatantly contrary to 

United

States

 v. 

Karo

,  (1984), where the police “inferred” from the activation of a

beeper that a certain can of ether was in the home. The police activity was

held to be a search, and the search was held unlawful.

40

How is Roberts Looking to the Future?

•

At any rate, the rule the Court adopts 

“must take account of more

sophisticated systems that are already in use or in development.”

Kyllo, 

533 U.S., at 36. While the records in this case reflect the state

of technology at the start of the decade, 

the accuracy of CSLI is

rapidly approaching GPS-level precision.

•

What is the easy way to get GPS precision from cell phone data?

41

What is The Government’s Position?

•

The Government’s primary contention to the contrary is that the

third-party doctrine governs this case. 

In its view, cell-site records are

fair game because they are “business records” created and

maintained by the wireless carriers. The Government (along with

Justice Kennedy) recognizes that this case features new technology,

but asserts that the legal question nonetheless turns on 

a garden-

variety request for information from a third-party witness

.

42

What Is The Effect of Applying the

Traditional Third-Party Rule?

•

As the government and the dissent point out, cell phone location

data is a business record created by the phone company for its

own business purposes and invisible to the phone user. (At least

until modified by statute.)

•

How can an individual have a reasonable expectation of privacy in

data which he neither controls nor directly generates, in the way

he might generate other electronic data such as email.

43

Is this Case about Phone Privacy?

•

Yet this case is not about “using a phone” or a person’s movement at

a particular time. 

It is about a detailed chronicle of a person’s physical

presence compiled every day, every moment, over several years. Such

a chronicle implicates privacy concerns far beyond those considered

in Smith and Miller.

•

Think about why traditional phone data was much more limited than

cell phone data – what did you have to do to make calls away from

home?

44

Is data voluntarily given to the phone

company?

•

In the first place, cell phones and the services they provide are “such a

pervasive and insistent part of daily life” that carrying one is indispensable

to participation in modern society.

•

Is this a well-recognized legal test?

•

Would it undermine the third-party rule if it required voluntary turning

over data and voluntary was not just theoretical?

•

What does it take to not give data to third-parties?

•

Could you hold a job?

45

What was the Holding on the Search

Question?

•

We therefore decline to extend Smith and Miller to the collection of CSLI

.

•

Given the unique nature of cell phone location information, the fact that

the Government obtained the information from a third party does not

overcome Carpenter’s claim to Fourth Amendment protection. 

The

Government’s acquisition of the cell-site records was a search within the

meaning of the Fourth Amendment.

46

Does Carpenter End the Third-Party

Doctrine?

•

We do not disturb the application of Smith and Miller or call into

question conventional surveillance techniques and tools, such as

security cameras. Nor do we address other business records that

might incidentally reveal location information. Further, our opinion

does not consider other collection techniques involving foreign

affairs or national security.

•

Do you expect the lower courts to limit Carpenter to cell phone

location data?

47

What About the Warrant?

•

Having found that the acquisition of Carpenter’s CSLI

was a search, we also conclude that the Government

must generally obtain 

a warrant supported by

probable cause 

before acquiring such records.

•

Not an administrative warrant or simple subpoena.

48

Was there a Court Order?

•

The Government acquired the cell-site records pursuant to a court

order issued under the Stored Communications Act, 

which required

the Government to show “reasonable grounds” for believing that

the records were “relevant and material to an ongoing

investigation.” 

18 U.S.C. §2703(d).

•

(In the absence of the legislation, they would have needed a

subpoena, at most.)

49

Does this meet the probable cause

standard?

•

That showing falls well short of the probable cause required for a

warrant. 

The Court usually requires “some quantum of individualized

suspicion” before a search or seizure may take place. … 

Under the

standard in the Stored Communications Act, however, law

enforcement need only show that the cell-site evidence might be

pertinent to an ongoing investigation 

— a “gigantic” departure from

the probable cause rule.

50

The Subpoena Fight

•

Depending on the entity issuing them, subpoenas may have no

judicial supervision or may just be signed by a judge without any

review of the underlying document request.

•

The subpoenas in Carpenter look more like a warrant than a

traditional subpoena. 

They are reviewed by a judge, and while

Justice Roberts finds a gigantic leap from the standard in the

Stored Communications Act to probable cause, they may not be

as far apart in practice.

51

Justice Alito’s view of subpoenas and

the 4

th

 Amendment

•

“Justice Alito contends that the warrant requirement simply does not

apply when the Government acquires records using compulsory

process. 

Unlike an actual search, he says, subpoenas for documents

do not involve the direct taking of evidence; they are at most a

“constructive search” conducted by the target of the subpoena

.

•

In his view, this Court’s precedents set forth a categorical rule —

separate and distinct from the third-party doctrine — subjecting

subpoenas to lenient scrutiny without regard to the suspect’s

expectation of privacy in the records.”

•

(How could there be an expectation of privacy under the third-party

doctrine?)

52

Roberts view of cell phone location data as a

new judicial animal

•

Justice Alito overlooks the critical issue. At some point, the dissent

should recognize that CSLI is an entirely different species of

business record — something that implicates basic Fourth

Amendment concerns about arbitrary government power much

more directly than corporate tax or payroll ledgers.

•

 (“A search of the information on a cell phone bears little

resemblance to the type of brief physical search considered [in

prior precedents].”). 

Riley v. California

53

The majority holding

•

We decline to grant the state unrestricted access to a wireless carrier’s

database of physical location information. 

In light of the deeply

revealing nature of CSLI, its depth, breadth, and comprehensive reach,

and the inescapable and automatic nature of its collection, the fact that

such information is gathered by a third party does not make it any less

deserving of Fourth Amendment protection. 

The Government’s

acquisition of the cell-site records here was a search under that

Amendment.

•

[Caveat – this is a retrospective, targeted look. What if the government

already has obtained the data legally?]

54

JUSTICE KENNEDY, with whom

JUSTICE THOMAS and JUSTICE

ALITO join, dissenting.

55

The property-based view of the 4

th

Amendment in 

Katz

•

Katz did not abandon reliance on property-based concepts. 

The Court in

Katz analogized the phone booth used in that case to a friend’s

apartment, a taxicab, and a hotel room. 

So when the defendant “shu[t]

the door behind him” and “pa[id] the toll,” id., at 352, he had a

temporary interest in the space and a legitimate expectation that others

would not intrude, much like the interest a hotel guest has in a hotel

room, Stoner v. California, 376 U.S. 483 (1964), or an overnight guest has

in a host’s home, Minnesota v. Olson, 495 U.S. 91 (1990).

56

How 

Smith

 and 

Miller

 limit 

Katz

•

Miller

 and 

Smith

 set forth an important and necessary limitation on the

Katz

 framework. 

They rest upon the commonsense principle that the

absence of property law analogues can be dispositive of privacy

expectations

. ...The records were the business entities' records, plain

and simple. 

The defendants had no reason to believe the records were

owned or controlled by them and so could not assert a reasonable

expectation of privacy in the records.

57

The principle that the state may compel

the production of evidence

•

The second principle supporting 

Miller

 and 

Smith 

is 

the longstanding

rule that the Government may use compulsory process to compel

persons to disclose documents and other evidence within their

possession and control. 

See United States v. Nixon, 418 U.S. 683,

709 (1974) (it is an “ancient proposition of law” that “

the public has

a right to every man’s evidence” 

(internal quotation marks and

alterations omitted)). A subpoena is different from a warrant in its

force and intrusive power.

58

Subpoena v. Warrant

•

While a warrant allows the Government to enter and seize and

make the examination itself, a subpoena simply requires the

person to whom it is directed to make the disclosure. 

A subpoena,

moreover, provides the recipient the “opportunity to present

objections” before complying, which further mitigates the

intrusion.

•

Who gets the subpoena?

•

Is the recipient in 

Carpenter

 the right party to contest the

subpoena? 

Does Carpenter get notice of the subpoena?

59

Had he been notified, could Carpenter

have contested the subpoena?

•

Persons with no meaningful interests in the records sought by a

subpoena, like the defendants in Miller and Smith, 

have no rights

to object to the records’ disclosure 

— much less to assert that the

Government must obtain a warrant to compel disclosure of the

records.

60

Does the property reading of the 4

th

Amendment lock us in the past?

•

Miller

 and 

Smith

 may not apply when the Government obtains

the modern-day equivalents of an individual’s own “papers” or

“effects,” even when those papers or effects are held by a third

party. See 

Ex parte Jackson

, 96 U.S. 727, 733 (1878) (

letters held

by mail carrier

); 

United States v. Warshak

, 631 F.3d 266, 283-

288 (C.A.6 2010) 

(e-mails held by Internet service provider

).

•

 As already discussed, however, this case does not involve

property or a bailment of that sort.

61

What makes cell phone location data

unique?

•

Still, the Court maintains, cell-site records are “unique” because

•

 they are “comprehensive” in their reach;

•

allow for retrospective collection;

•

are “easy, cheap, and efficient compared to traditional investigative

tools”;

•

and are not exposed to cell phone service providers in a meaningfully

voluntary manner.

62

What about credit card records in an

increasingly cashless society?

•

But many other kinds of business records can be so

described. 

Financial records are of vast scope. Banks

and credit card companies keep a comprehensive

account of almost every transaction an individual

makes on a daily basis. 

“With just the click of a button,

the Government can access each [company’s] deep

repository of historical [financial] information at

practically no expense.”

63

Does the Majority provide guidance on

knowing what other data is unique?

•

… the Court does not explain what makes something a distinct category

of information.

•

The Court’s multifactor analysis — considering intimacy,

comprehensiveness, expense, retrospectivity, and voluntariness — puts

the law on a new and unstable foundation.

•

The Court suggests that less than seven days of location information may

not require a warrant. 

But the Court does not explain why that is so…

•

by invalidating the Government’s use of court-approved compulsory

process in this case, the Court calls into question the subpoena practices

of federal and state grand juries, legislatures, and other investigative

bodies

64

JUSTICE ALITO, with whom

JUSTICE THOMAS joins,

dissenting.

65

Alito’s Property Focus

•

…

the Court effectively allows Carpenter to object to the “search” of a

third party’s property, 

not recognizing the revolutionary nature of this

change. 

The Court seems to think that Miller and Smith invented a new

“doctrine” — “the third-party doctrine” — and the Court refuses to

“extend” this product of the 1970’s to a new age of digital

communications. 

But the Court fundamentally misunderstands the role

of Miller and Smith. Those decisions did not forge a new doctrine;

instead, they rejected an argument that would have disregarded the

clear text of the Fourth Amendment and a formidable body of

precedent.

66

Does the Majority Provide a False Sense

of Privacy?

•

The Fourth Amendment restricts the conduct of the Federal

Government and the States; it does not apply to private actors. 

But

today, some of the greatest threats to individual privacy may come

from powerful private companies that collect and sometimes misuse

vast quantities of data about the lives of ordinary Americans. If today’s

decision encourages the public to think that this Court can protect

them from this looming threat to their privacy, the decision will

mislead as well as disrupt.

•

Can the constitution protect us from Facebook?

67

Gorsuch’s Dissent (Why not a

Concurrence in the Result?)

•

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.

Pre-

Katz

•

There is another way. From the founding until the 1960s, the right to assert

a Fourth Amendment claim didn’t depend on your ability to appeal to a

judge’s personal sensibilities about the “reasonableness” of your

expectations or privacy. It was tied to the law.

•

The Fourth Amendment protects “the right of the people to be secure in

their persons, houses, papers and effects, against unreasonable searches

and seizures.” True to those words and their original understanding

, the

traditional approach asked if a house, paper or effect was yours under law.

No more was needed to trigger the Fourth Amendment.

•

[Did these laws distinguish between the physical object and the information

it contained? Even in the old days, the information your bank held was not

yours.]

•

[What about administrative searches? Is this view endorsing the search for

criminal evidence distinction between administrative and criminal

searches?]

Rethinking the T-P Relationship

•

First, the fact that a third party has access to or possession of your

papers and effects does not necessarily eliminate your interest in

them.

•

Ever hand a private document to a friend to be returned?

•

Toss your keys to a valet at a restaurant?

•

Ask your neighbor to look after your dog while you travel?

•

You would not expect the friend to share the document with

others; the valet to lend your car to his buddy; or the neighbor to

put Fido up for adoption.

•

Entrusting your stuff to others is a bailment. A bailment is the

“delivery of personal property by one person (the bailor) to another

(the bailee) who holds the property for a certain purpose.”

The Mail Precedent

•

Our Fourth Amendment jurisprudence already reflects this truth. In Ex

parte Jackson, 96 U.S. 727 (1878), 

this Court held that sealed letters

placed in the mail are “as fully guarded from examination and inspection,

except as to their outward form and weight, as if they were retained by

the parties forwarding them in their own domiciles.”

•

The reason, drawn from the Fourth Amendment’s text, was that 

“[t]he

constitutional guaranty of the right of the people to be secure in their

papers against unreasonable searches and seizures extends to their

papers, thus closed against inspection, wherever they may be.”

•

It did not matter that letters were bailed to a third party (the

government, no less).

Email

•

These ancient principles may help us address modern data cases too.

Just because you entrust your data—in some cases, your modern-day

papers and effects—to a third party may not mean you lose any

Fourth Amendment interest in its contents.

 Whatever may be left of

Smith and Miller, few doubt that e-mail should be treated much like

the traditional mail it has largely supplanted—as a bailment in which

the owner retains a vital and protected legal interest.

Is Exclusive Control Required?

•

Second, I doubt that complete ownership or exclusive control of

property is always a necessary condition to the assertion of a Fourth

Amendment right.

•

Where houses are concerned, for example, individuals can enjoy

Fourth Amendment protection without fee simple title.

•

Both the text of the Amendment and the common law rule support

that conclusion. 

“People call a house ‘their’ home when legal title is

in the bank, when they rent it, and even when they merely occupy it

rent free.”

•

That rule derives from the common law. That is why 

tenants and

resident family members—though they have no legal title— have

standing to complain about searches of the houses in which they

live.

Is Voluntary the Key?

•

Another point seems equally true: 

just because you have to entrust a

third party with your data doesn’t necessarily mean you should lose

all Fourth Amendment protections in it.

•

…

•

At least some of this Court’s decisions have already suggested that

use of technology is functionally compelled by the demands of

modern life, and in that way 

the fact that we store data with third

parties may amount to a sort of involuntary bailment too.

The Legislature Can Fix This

•

Both the States and federal government are actively legislating in the

area of third party data storage and the rights users enjoy. : : : If state

legislators or state courts say that a digital record has the attributes

that normally make something property, that may supply a sounder

basis for judicial decisionmaking than judicial guesswork about

societal expectations.

•

[What is the tension with legislators? How would you lobby against

such legislation?]

But They Cannot Remove Rights

•

Legislatures cannot pass laws declaring your house or papers to be your

property except to the extent the police wish to search them without

cause. As the Court has previously explained, “we must ‘assur[e]

preservation of that degree of privacy against government that existed

when the Fourth Amendment was adopted.’”

•

Nor does this mean protecting only the specific rights known at the

founding; it means protecting their modern analogues too. 

So, for

example, while thermal imaging was unknown in 1791, this Court has

recognized that using that technology to look inside a home constitutes

a Fourth Amendment “search” of that “home” no less than a physical

inspection might.

•

[I wonder if that case is still good law, now that we routinely use

thermal imaging for energy audits?]

Subpoenas Are Not A Substitute for  A

Warrant

•

Fifth, this constitutional floor may, in some instances, bar efforts to

circumvent the Fourth Amendment’s protection through the use of

subpoenas. 

No one thinks the government can evade Jackson’s prohibition

on opening sealed letters without a warrant simply by issuing a subpoena

to a postmaster for “all letters sent by John Smith” 

or, worse, “all letters

sent by John Smith concerning a particular transaction.” So the question

courts will confront will be this: What other kinds of records are sufficiently

similar to letters in the mail that the same rule should apply?

Why Carpenter Is The Wrong Case to

Explore these Theories

•

The problem is that we do not know anything more. Before the district

court and court of appeals, 

Mr. Carpenter pursued only a Katz

“reasonable expectations” argument. He did not invoke the law of

property or any analogies to the common law, either there or in his

petition for certiorari. 

Even in his merits brief before this Court, Mr.

Carpenter’s discussion of his positive law rights in cell-site data was

cursory. He offered no analysis, for example, of what rights state law

might provide him in addition to those supplied by §222. In these

circumstances, 

I cannot help but conclude—reluctantly—that Mr.

Carpenter forfeited perhaps his most promising line of argument. 

: : :