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.