Carpenter v. United States and the Role of Originalism

Orin Kerr is undeniably one of the country’s leading authorities on the Fourth Amendment, particularly its applications to computers and other electronic devices. We have learned a great deal from his scholarship and blogging on these issues, and we admire both the clarity of his writing and the deep reservoir of legal knowledge he brings to these subjects. But we humbly submit that in his blogging and briefing of Carpenter v. United States, a blockbuster Fourth Amendment case that will be argued on Wednesday, he’s missed the mark. In a series of blog posts, we’ll give our own account of the issues presented in Carpenter.

Carpenter concerns the ability of the government to obtain a cell phone subscriber’s historic cell site information without a warrant. As people carry cell phones around with them and use them to make calls, signals from those phones are pinging off the nearest cell phone towers, and their proximity to various towers at differing times of day permits the police to reconstruct the cell phone user’s whereabouts in physical space. Cell phone carriers retain this historic cell site location, evidently for periods ranging between a year and seven years, depending on the carrier. The Sixth Circuit held that no warrant is required for the government to obtain this information from a cell phone provider, and the Supreme Court granted cert.

In a blog post about Carpenter, Orin argues that originalists should probably support the respondents in Carpenter. We have a few points to add to the excellent amicus brief by several legal scholars evaluating the Fourth Amendment’s original meaning.

First, if the question is whether the Founding Fathers would have countenanced law enforcement’s warrantless tracking of an individual’s location for weeks at a time, we suspect the answer is probably not. Or they might have thought that if the government wanted to do that, it would have needed to expend very substantial resources each time, by arranging for round-the-clock tails whenever a surveillance left home. What troubles many about the use of historic cell site records is that it has become very cheap and easy for the government to gather information about many peoples’ whereabouts over a long period of time without them even knowing about it. That gives the government an awful lot of power in a way that exposes a lot of sensitive personal information without a strong government justification for collecting it. One function of the Fourth Amendment is to raise the costs of certain kinds of government searches, precisely so that the government will only elect to expend those resources when they really need the sensitive information at issue. This is a point that Justice Alito’s concurring opinion in Jones makes forcefully, at the beginning of Part V.  (See also this terrific paper by Minzner and Anderson.)  The precise issue of geolocation surveillance didn’t come up during Founding era debates in part because the kind of massive surveillance the government is now engaged in would have been unimaginable, especially in a country without professional police forces and a much smaller government than we have today.

Second, there is a deeper problem with Orin’s take on originalism, which is that under the approach he adopts in his blog post, Katz v. United States seems to have been wrongly decided. In its landmark Katz opinion, the Supreme Court famously held that when the government listened in on calls made from a pay phone via a wiretap, this constituted a Fourth Amendment search. Orin says that the original meaning of the Fourth Amendment was limited to Americans’ persons, houses, papers, and effects. Cell site records are papers but, Orin notes, they are likely to be the cell phone companies’ papers rather than the cell phone users’ records. But by that logic, Katz wasn’t a search. There was no physical intrusion into the phone booth, and no search of a home or paper or person or effect was at issue. Kerr says that the Fourth Amendment originally protected the contents of communications in the sense that the contents of a letter belonged to the sender rather than the post office. And that is true as a matter of copyright law with respect to writings. But people do not have any copyright or other property interest in a fleeting phone call that isn’t recorded. What the Supreme Court said in Katz, though, was that “the Fourth Amendment protects people, not places.” By this they meant that the Fourth Amendment is there to vindicate personal privacy, a conclusion consistent with the historical purposes of the Amendment and reflected in the earliest cases addressing the question of the Fourth Amendment’s scope.  In any event, the concept of privacy has been a major part of American jurisprudence since Warren and Brandeis’s 1890 Harvard Law Review article. Justice Scalia conceded (in Lucas v. South Carolina Coastal Council) that while the original public meaning of the Fifth Amendment did not contemplate such a thing as regulatory takings, decades after Justice Holmes introduced the concept of regulatory takings into the law (in Pennsylvania Coal Co. v. Mahon), it had become an essential part of the Fifth Amendment’s meaning. Whatever its originalist bona fides, Justice Stewart’s opinion in Katz seems to have solidified into a core feature of the Fourth Amendment in the fifty years since the case was decided.

Third, a version of Fourth Amendment originalism grounded in the “early American law of … trespass” would also seem to require courts to discard the exclusionary rule that today gives the Fourth Amendment nearly all of its force.  The rule has no express foundation in the Fourth Amendment’s text, and there is no evidence that the Framers contemplated the exclusion of evidence.  (Justice Black tried to make the exclusionary rule originalism-friendly by tying the Fourth Amendment to the Fifth in his Mapp v. Ohio concurrence, but that’s a rather idiosyncratic take.) Of course, the Framers had no need for exclusion.  At the time of the Founding, citizens could deter unreasonable searches and seizures by suing the constable for trespass and obtaining punitive damages or by using force to prevent his entry.  Today, a lawsuit against a police officer for an unreasonable search would generally yield only nominal damages, and physically attacking a police officer is unlawful and profoundly unwise.  So the approach to originalism reflected in Orin’s post is inconsistent not only with Katz’s holding, but also, arguably, with its remedy.  Orin’s amicus brief and blogging insists that the Supreme Court should continue to adhere to the third party doctrine, a legal doctrine strongly hinted at in 1950’s cases involving undercover enforcement but applied to business records only in the 1970s. It’s hard to figure out why the correctness of the third party doctrine, but not the correctness of Katz or Mapp, is foundational in the Fourth Amendment.


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7 Responses

  1. Orin Kerr says:

    Thanks for the engagement, Lior & Matt! I’m very flattered. Let me offer some thoughts here on why I disagree, though. I’ll address the three points you make in turn.

    On the first issue, what the Framers would have thought about Carpenter, I don’t se that as an originalist question. I take the originalist framework to ask “what did this text mean” or “what would the public think this text means” at the time it was enacted. You seem to be asking a different question, something like, “if we could bring the Framers back from the dead and give them the facts of Carpenter, how would they feel about it?” I have no idea what the answer to that is. But I don’t think of that as a question originalism asks.

    On the second question, whether Katz is correct as an originalist matter, I disagree with your claim that Katz is wrong from an originalist perspective. I gather everyone agrees that a phone booth is, in the abstract, an “effect.” It is a physical piece of property on land. The question is, whose effect was it? The phone company’s, or Katz’s? Katz held that the phone booth was Katz’s protected place under the Fourth Amendment during his call. As the Court put it, a person “who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call” has Fourth Amendment rights in the phone booth for the “momentary” period of the call.

    If you’re an originalist, it’s easy to restate the holding of Katz in originalist terms.. The phone booth became Katz’s “momentary” effect just like a hotel room becomes a person’s momentary home during the period of stay and just like Jones’s car was his effect while he was driving it with his wife’s permission. As Justice Scalia emphasized in his originalist concurrence in Minnesota v. Carter, in the context of homes:

    Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. 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—so long as they actually live there.

    The same is presumably true with effects. From this perspective, the phone booth became Katz’s effect for the period of the call — his space that he rented, temporarily, for the duration of the call — when he physically occupied the phone booth and paid the required toll. (I have a related post about to go up on Volokh on why I think the Katz test is easily reconcilable with the Fourth Amendment text; it should be up this afternoon.)

    As for the third argument on remedies, I’m not sure I follow. First, who is arguing that the Fourth Amendment should follow the technical law of trespass? It never has done so, and I’m not sure who thinks it should start. Even the first Fourth Amendment cases on what is a “search” did not apply a trespass test; the first Supreme Court case applying a trespass test was 2012 (Jones). And even if you think the search test should be trespass, I’m not sure why that means you should oppose the exclusionary rule. The Fourth Amendment says nothing at all about remedies. You could argue that the original public meaning of the right locked in some set of remedies, but I don’t know why that is necessary. The focus of the Fourth Amendment’s text and debate was just on the right, with no mention of remedies.

  2. Lior Strahilevitz & Matthew Tokson says:

    Thanks, Orin. I look forward to reading your post.

    On number one, I think we weren’t quite careful enough in describing the originalist question. I think that if the original public meaning question is phrased as “would the people who ratified the text have understood themselves as permitting federal officers to follow their movements in public places for long periods of a time without securing a warrant?” the answer probably would have been no. And I have the same intuitions about the reaction when the 14th amendment was ratified. But yes, you’re right that to the extent we are addressing the form of originalism that has the most adherents we should be speaking in terms of original public meaning, not original intent. I think the answer is the same based on 18th century conceptions of the proper role for the state but I agree with you that nobody can know.

    On Katz, I’m familiar with the renting the phone booth point. I’m somewhat skeptical for a couple of reasons. First, Katz clearly applies to wiretaps where the government never touches the phone booth. So if Katz were just a “government can’t touch the phone booth but can install the tap at another location” it wouldn’t be a very big deal. Second, even staying with the phone booth example, suppose that I use a telephone booth and leave my sunglasses inside. Then you start using the same telephone booth. And I return and, without asking your permission, reach in and retrieve my sunglasses. I have behaved rudely (which I think is relevant under the probabilistic model). But I almost certainly haven’t intruded upon your property rights and I don’t think you’d win if you brought a trespass suit against me, unless I injured you. What you pay for when you put money in a pay phone is a right to use the phone to make a call using a utility’s company’s effect, not a right to exclude anyone from a particular space.

    Matt may have more to say about the third point. I think our point was that the 4th Amendment’s ratifiers did not appear to contemplate anything like the exclusionary rule, and early American practice provided for a different set of remedies than the dominant contemporary remedies. Maybe that’s an argument for affirming (the remedy Carpenter is seeking is illegitimate) or maybe it’s an argument for treating originalist Fourth Amendment concerns the same way that Justice Scalia treated originalist Fifth Amendment concerns in Lucas.

    We’ll have more to say about the probabilistic model and the third party doctrine soon.


  3. Brett Bellmore says:

    “Cell site records are papers but, Orin notes, they are likely to be the cell phone companies’ papers rather than the cell phone users’ records. But by that logic, Katz wasn’t a search. ”

    I must confess that I’ve never understood that reasoning. Sure, the part about the records being the phone companies’ papers, but not how this implies no need for a warrant.

    “and physically attacking a police officer is unlawful and profoundly unwise. ”

    No argument about profoundly unwise, but unlawful? No, actually it is lawful. Just likely to get you killed, and hounded by the police for the rest of your life if you survive.

  4. Matthew Tokson says:

    Orin, thank you for the comment and sorry for the delayed response.

    A few thoughts to add to Lior’s. I don’t necessarily agree that a phone booth is an “effect.” Off the top of my head, I would classify it as a form of commercial real property, and thus not listed in the Fourth Amendment. (I’m certainly open to persuasion on the breadth of “effects.”) It doesn’t matter much anyway. As Lior points out in his comment, the importance of Katz is that it prohibited wiretapping and bugging regardless of property interests and location. Reducing Katz to holding that the microphone had to rest on the ground rather than touch the phone booth essentially reduces it to nothing.

    On the third point, I agree that no one actually argues that the Fourth Amendment should be limited to trespass remedies (and thank goodness). The point is there’s a lot of tension between strictly limiting Fourth Amendment standing based on property and American trespass law, privacy be damned, but then employing a Fourth Amendment remedy designed to protect privacy instead of just relying on American trespass law. Arguably, a consistent approach would limit the remedy as strictly as it limits standing.


  5. Orin Kerr says:

    A few thoughts:

    1) On Katz, whether it was Katz’s “effect” was the question the court decided, I think. The government argued that a phone booth was like an open field, out in the open, and not a place the Fourth Amendment extended to. Katz argued that the phone booth was a place that the Fourth Amendment could protect like a home. Textually, the question was whether the phone booth was Katz’s effect. As for wiretapping, that was addressed in Berger, not Katz: Berger’s holding that wiretaps were searches effectively treated the phone company’s network as the user’s effect during the call. That’s the same basic idea as the Warshak case, which says it’s a search to get a user’s e-mail on a remote server; the server space of the legitimate user becomes their effect. Of course, one can always quibble with whether such a result was correct. But that’s about whether one is ultimately persuaded by a ruling, not whether it’s possible to get that ruling (the point of the main post).

    2) As for Lior’s theory about rudely interrupting someone in a phone booth, I don’t get why it matters whether one has a legitimate trespass claim against a private party who did that. I doubt a person has a legitimate trespass claim against someone who breaks into my hotel room, but I still have full Fourth Amendment rights in my hotel room. As Justice Scalia emphasized in his Carter concurrence, the issue is whether the space is treated as theirs, even if just temporarily, not if they have technical property rights in it.

    3) On remedies, I don’t see the connection. But more broadly, I don’t think anyone here is saying that an originalist should ” strictly limiting Fourth Amendment standing based on property and American trespass law.” No one is arguing that position, and Justice Scalia rejected it in his originalist concurrence in MN v. Carter. So Not only do I think A doesn’t imply B, I don’t think we have A at all (much less B).

  6. Lior Strahilevitz & Matthew Tokson says:

    Orin – I don’t want to get too deep into the woods here, but two quick responses.

    First, your characterization is pretty apt as applied to the Harlan concurrence in Katz. As you know, what the Katz majority said is this: “[T]his effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even if in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. … [W]e have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any ‘technical trespass under local property law.’ [Silverman] Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people – and not simply ‘areas’ – against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”

    I don’t see how any of that language in Katz follows from the constitutional text, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” So I don’t see how Katz itself can be squared with original public meaning. Maybe you mean that the result in Katz could be squared with originalism if the opinion were re-written from the ground up or if Justice Harlan’s entire concurrence were the majority opinion. I think that’s a sensible view. My point is that when you get from Katz to its progeny you have to make a (pretty strained) argument that Katz had some kind of rental interest in telephone switching / routing equipment for landline calls and wireless calls. These are not property rights that the law of property recognizes. The text of the Fourth Amendment refers to “their” persons, houses, papers, and effects. “Their” is a possessive term. And possession is a property rights concept. Absent a possessory interest in cell phone call routing equipment, I don’t see how the modern manifestation of Katz jives with the text. The plural possessive “their” is a really important word for an originalist, it seems to me.

    Second, you are mistaken that a hotel guest has no trespass remedy against someone who enters the hotel room improperly. Such claims have long been recognized at common law. See, e.g., Newcomb Hotel Co. v. Corbett, 108 S.E. 309 (Ga. 1921); Clancy v. Barker, 98 N.W. 440 (Neb. 1904). As far as property law is concerned, a hotel room really is “their” property (i.e., guests’ property) during the period of valid occupancy.


  7. Commodore says:

    Let’s say the cops were looking for someone with a scar across their thigh. So they follow the suspect into the phone company’s store and into their public bathroom, and take a picture of him while he’s at the urinal. They claim they didn’t need a warrant because he was in private business and not his home. The bathroom wasn’t his “effect”. Did they need the warrant?