The Fourth Amendment Does Not Require “Demonstrative Action” to Protect Privacy

In a previous post, we discussed the test that the Supreme Court will likely use to resolve United States v. Carpenter, the major Fourth Amendment case that will be argued in the Supreme Court tomorrow. We responded to Orin Kerr’s argument that the Supreme Court should not consider people’s actual expectations of privacy in resolving Carpenter. In this post, we will examine Orin’s proposed alternative test and discuss the state of public knowledge about cell phone location tracking.

In Orin’s recent blog post, he discusses the connection between people’s knowledge of cell phone technology and their expectations of privacy in their cell phone’s location. Each of the appeals courts to examine the constitutionality of historical cell phone location tracking has based its decision in part on the extent of societal knowledge about cell phone technology. Controversially, most of these courts, including the Sixth Circuit in Carpenter, have concluded that cell phone users are generally aware that their cell phone companies are tracking their locations and storing records of their movements. This is a somewhat remarkable claim regarding public knowledge of an obscure and complex location tracking technology—and empirical surveys of cell phone users suggest that it is mistaken.

One of us has recently conducted a large-scale survey indicating that Americans are overwhelmingly not aware that their cell phone providers collect location information on them via their cell phones. Indeed, most people do not seem to be aware that their movements can be tracked using their cell phone signals. Accordingly, they do not knowingly disclose information about their movements to third parties.  Nor do they consent to such disclosure, because one cannot consent to something unconsciously or unknowingly.

To his credit, Orin acknowledges the possibility that cell phone users are unaware of cell phone location tracking. He instead argues that users may eventually acquire this knowledge, in which case a decision in Carpenter’s favor on the basis of societal knowledge would eventually become “wrong.”

We have several responses to this.  One is that a decision premised on an accurate assessment of societal knowledge at the time when Carpenter was tracked would not become “wrong” just because people eventually gain advanced knowledge of cell phone technology. Regardless of some hypothetical future defendant’s knowledge, it is fairly clear that Carpenter did not knowingly disclose his movements to a third party, and therefore did not forfeit his Fourth Amendment protections. Carpenter’s contemporaries (i.e., present-day Americans) generally shared his expectations.

Moreover, a large increase in knowledge of cell phone technology is unlikely in the foreseeable future. Public ignorance of even basic science is widespread and persistent. And, as we discussed in our previous post, social science studies indicate that Supreme Court cases have little impact on the perceptions or knowledge of the general public.

In any event, we consider Orin’s proposed alternative test for the Fourth Amendment’s scope to be untenable. Orin argues in Part IV of his amicus brief that the Court should ignore actual expectations of privacy and instead look to whether a citizen has “exhibited” an expectation of privacy by taking affirmative steps to prevent observation. Thus Orin contends that an expectation of privacy must be “demonstrated by an act” in order to receive constitutional protection.

Although Katz himself acted to protect his privacy by closing the telephone booth door before placing a call, a “demonstrative action” test would be a major departure from existing Fourth Amendment law, and an unwelcome one.

Fourth Amendment law is full of examples of courts finding Fourth Amendment protection for information accessible to others, even when the target has taken no demonstrative action to protect it.  Kyllo engaged in no demonstrative action to prevent heat from escaping his house.  Bond engaged in no demonstrative action to prevent the touching of his luggage. Five Justices agreed that tracking Jones’s location via GPS violated the Katz test, although Jones took no affirmative step to prevent the observation of his movements. Most people take no demonstrative action to prevent observation of their emails or the web sites they visit.  Like Carpenter, the people in these examples reasonably expect privacy in their information and belongings. In fact, people who reasonably expect privacy in a given situation may be less likely to take action to protect their privacy, because such action is likely unnecessary. Requiring citizens to take affirmative steps to prevent observation of their information in order to claim Fourth Amendment protection would drastically depart from existing law and substantially shrink the scope of the Fourth Amendment.

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9 Responses

  1. Orin Kerr says:

    Thanks, again, for the engagement. To be clear, I’m not arguing that Fourth Amendment protection requires “demonstrative action.” Rather, I’m noting the 70 years or so of caselaw saying that Fourth Amendment protection requires concealment from others. You can’t expose something to others and then say you have Fourth Amendment rights against being observed. So I’m not proposing a “a major departure from existing Fourth Amendment law.” I’m just pointing out what the existing Fourth Amendment law is.

    To be sure, there are some hard cases on what counts as exposure, especially in a social situations. So in Bond, the majority held that Bond had not exposed the insides of his duffel bag to other passengers because one wouldn’t expect other passengers to squeeze his bag like that. Breyer dissented, taking the opposite view. And in Kyllo, the court ruled 5-4 that Kyllo had not exposed the insides of his home; he had opaque walls and the roof that concealed the inside from outside view. The cases largely hinged on whether there was exposure; as far as I know, no one argued that if the information was exposed it was still protected.

    The other example you give is the Jones concurrences, which seem to be in effect morphed into a majority ruling. I agree that Jones did not involve concealment; Jones apparently was driving in public streets. And the reasoning of the Jones concurrences didn’t seem to think that mattered. But they were not the opinion of the Court, and I do not think they were correct for the reasons I point out in my amicus brief.

  2. Orin Kerr says:

    Oh, and I should respond to this: “Most people take no demonstrative action to prevent observation of their emails.”

    Everyone protects their e-mail accounts with a secret password that conceals the contents of their account from others. If they post their e-mails or other files on a public site, exposed to others, then they don’t have Fourth Amendment rights against the date they post.

  3. Orin Kerr says:

    data, not date

  4. Joe says:

    ” in effect morphed into a majority ruling”

    Sotomayor’s concurrence suggests to me she was sympathetic to the general principle at issue so unclear to me why one would think there wasn’t five votes if the matter was pressed.

  5. Orin Kerr says:

    Joe writes: “Sotomayor’s concurrence suggests to me she was sympathetic to the general principle at issue so unclear to me why one would think there wasn’t five votes if the matter was pressed.”

    It certainly seems plausible that there might have been an opinion of the Court for something like that if the matter had been pressed. Specifically what the opinion would say is unclear, but it probably would have existed. With that said, if we’re saying that a particular view is inconsistent with existing law, we don’t usually include hypothetical opinions that might have existed if the matter had been pressed as part of that existing law.

  6. Matthew Tokson says:

    Thanks Orin for the great comments on all this. I’ll just register my disagreement about what the Court is doing in Kyllo and Bond and how the Court treats exposure. Even if we focus on exposure rather than expectations demonstrated by an act, Kyllo exposed the heat from his lamps to anyone who cared to observe it. He still won. Bond exposed his bag to manual touching, as Bond himself conceded, and he still won. Greenwood protected his trash from visual examination (but exposed it to raccoons) and he lost. Riley protected his marijuana from ground observation but not from helicopter-mounted-plant-experts, and he lost. Going further, Katz exposed the contents of his phone call to anyone or anything that cared to listen outside of the booth. I expose the contents of my emails to Gmail’s computers, which scans them for various purposes. And Carpenter (inadvertently) exposed his historical location to his cell phone company’s computers. Maybe some of these exposures are greater than others (I think Kyllo’s is slightly greater than Carpenter’s, for instance). But in every case, the information is exposed to some unintended observation. So I don’t think exposure is doing much work in these cases and don’t think it can justify surveilling Carpenter. Anyway, agreement is elusive here but I’m enjoying thinking about all this.

  7. I’m very much enjoying that the authors of the posts in question are discussing their points and creating a great debate. Have you thought about doing competing article on purpose and doing responses that way? Its a shame these great points are in comment sections and would not be as frequently read than the articles themselves.

  8. Orin Kerr says:

    Matthew writes:

    “Greenwood protected his trash from visual examination (but exposed it to raccoons) and he lost.”

    Greenwood’s problem was that he put his trash out in public where he had no REP, not that he exposed the inside of the trash.

    “Riley protected his marijuana from ground observation but not from helicopter-mounted-plant-experts, and he lost.”

    Riley exposed his marijuana to observation from public airspace, which is what the government did and which is why he lost.

    “Going further, Katz exposed the contents of his phone call to anyone or anything that cared to listen outside of the booth.”

    No, because the government presumably couldn’t have heard what he said from outside the phone booth — he had closed the door, covering up his voice. They could hear Katz because they had physically connected a microphone to the booth, which enabled them to hear his part of the call.

    “I expose the contents of my emails to Gmail’s computers, which scans them for various purposes.”

    You may have exposed what gmail learns from the scanning — unclear to me if that retains an REP, — but you haven’t generally exposed the contents of your e-mails to the provider any more than you have exposed the contents of your phone calls to the phone company or exposed the contents of your postal letter to the envelope.

    “And Carpenter (inadvertently) exposed his historical location to his cell phone company’s computers.”

    We don’t have anything in the record, as fas I know, about whether Carpenter personally understands how cell phones work. It’s hard to see his advertence or inadvertence as relevant. If you leave the blinds open and someone from outside sees you, you can’t claim that the outside observation violates your rights because you didn’t realize you had left the blinds open. More broadly, Carpenter broadcast a signal presumably hoping the network would pick it up.

  9. Joe says:

    Kagan counted to five in the oral argument too.

    I would not critique too much, especially from someone as appropriately careful as a law professor with expertise in the field, the comment “we don’t usually include hypothetical opinions.”

    But, realistically, it is quite sound to count Sotomayor as providing a fifth vote when making a general argument and very well probably when advising a client on what to expect. The question is technically open but even a lower court judge open to the idea would not deserve much critique in counting noses here.

    If we want to be careful, it’s also good to know what exactly has been decided. We saw this when Prof. Kerr was discussing things pre-Jones. Using what he argued was clear precedent, he thought there was a good chance that Jones would lose. But, the Court specifically said in the relevant case that they were NOT deciding 24/7 monitoring. And, Scalia argued the cases did not deciding the GPS device matter at hand either.

    Prof. Kerr after the fact, as I recall, noted “well, if they want to change things, shrugs.” But, they didn’t say they were doing that. The justices argued the ruling followed the precedents. Of course, justices repeatedly do change the law while claiming not to do so. It’s easier when precedent leaves an open.

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