Ten Thoughts on Today’s Blockbuster Fourth Amendment Decision – Carpenter v. United States

Today the Supreme Court decided that the government generally needs a search warrant to obtain historic cell-site geolocation information. You can see Orin Kerr’s post — no doubt the first of many — for a helpful breakdown of the votes and holding, plus thoughtful analysis. In this post I am going to flag ten quick and initial reactions to the Court’s landmark ruling. Matt Tokson will follow-up with thoughts of his own, so you should stay tuned for those.

  1. From a pedagogy perspective, this case is loads of fun, and an editing challenge. If I were in charge of a casebook I’d want to assign most of the Kennedy, Thomas, and Gorsuch dissents, along with the majority opinion, and excerpts from the Alito dissent. Every Criminal Procedure or Privacy professor can look forward to “I can’t believe how much reading you assigned for the Carpenter class” on teaching evaluations.
  2. It’s good to be the Chief. At many points the majority opinions echoes Justice Sotomayor’s concurrence in Jones (and the Chief Justice’s opinion in Riley). I think had Justice Sotomayor written the majority opinion she would have written something that was a lot more intellectually satisfying by tackling some of the hard questions that the dissents raised and by pointing to the scholarship and theory that built the intellectual case for the majority’s bottom line. The dissents, especially the Thomas and Gorsuch opinions, use Fourth Amendment scholarship to explain exactly where they are coming from, whereas the majority opinion very conspicuously avoids that kind of engagement. The result is a majority opinion that’s cryptic, by design. The majority text and approach are consistent with the Chief’s dim views about legal scholarship generally and with his stated preference for minimalist decisions. My suspicion is that none of the other four justices in the majority would have written the opinion like the Chief Justice did, but they were happy to get a hugely consequential win and avoided writing separately for that reason.
  3. Nate Wessler’s time machine metaphor worked beautifully. Wessler, arguing the case for Carpenter, in I think his first ever SCOTUS oral argument, put on a virtuoso performance. His strongest moment was his invocation of the “time machine” idea – it’s one thing for the government to know where you are now, but quite another for it to go back in time and determine all the places you’ve been during the past few weeks or months. What’s interesting is that this argument is in tension with the structure of electronic surveillance law. Under the federal Stored Communications Act, email communications that have been stored for more than 180 days may be obtained by the government with only a subpoena or court order (with notice), whereas a warrant is required for the government to access stored communications that have been in storage for 180 or fewer days. The idea embedded in the statute is that it’s more intrusive for the government to know what’s happening now or recently than what happened long ago. Wessler’s time machine metaphor flipped this idea around and Chief Justice Roberts and the majority bought it. See, e.g., page 13 of the slip opinion (“With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts.”). Lawyers everywhere should start echoing the same theme, and the Wessler / Carpenter time-machine metaphor could influence Congress going forward as it legislates with respect to electronic surveillance. UpdateAs Kiel helpfully points out in the comment below, and as I failed to realize, the time-machine argument originated with my law school classmate, Professor Stephen Henderson, in this paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2643613. Kudos to Stephen! Let’s call it the Henderson / Wessler / Carpenter metaphor going forward.
  4. Two Models of Fourth Amendment Protection. There are basically two theories of what constitutes a search operating in the majority opinion, with the key language on page 15. Collecting cell site location information is a search because it’s unexpected and it’s a search because it’s sensitive. The key language for the former, what Orin Kerr calls the “probabilistic model” is this: “Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible.” The sentence that follows immediately articulates Kerr’s “private facts model” — “There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” The application of the probabilistic model would have been strongly supported by extensive survey research on what people actually expect, and given that the scholarship was brought up twice at oral argument (including a Matt Tokson shout-out) it’s plausible that the scholarship influenced the Chief Justice and the majority, but no one should be surprised that the Chief Justice didn’t want to rely on actual data and preferred to rely on a folksy intuition instead. The intuition is consistent with all the survey research, and not citing the data lets the Chief be noncommital on the methodological question of how to apply the Katz test. (Contrast Justice Gorsuch’s approach, in bullet point 8 below.) The majority’s application of the private facts model is the weakest part of the majority opinion. Justice Kennedy skewers the majority for failing to explain why cell site location information is more sensitive and revealing than pen registry information. As does Justice Gorsuch (pg. 3 – “Why is someone’s location when using a phone so much more sensitive than who he was talking to (Smith) or what financial transactions he engage in (Miller)? I do not know and the Court does not say.”) All the majority says (on page 16) is that “telephone logs reveal little in the way of ‘identifying information.’ … In mechanically applying the third-party doctrine to this case, the Government fails to appreciate that there are no comparable limitations on the revealing nature of CSLI.” This distinction is wafer thin. As Justice Kennedy suggests on pages 17-18 of his dissent, a comprehensive record of everyone you’ve called and how long you’ve spoken with them reveals a great deal about who your intimates are, often allows inferences about what was said, can identify associations that people are taking steps to keep secret, and reveals information sensitive information about other people (the recipients of those calls). The line the Court is drawing becomes an indelible part of the Constitution’s meaning, but we shouldn’t kid ourselves in thinking that it’s grounded in any hard evidence or strong theory. And that should make us think it’s a line that could get erased before too long.
  5. The Missing Two Models of Fourth Amendment Protection. What of the Positive Law Model of Fourth Amendment Protection and the Policy Model? The Positive Law Model (the idea that property rights and other aspects of state law determine what is protected against Fourth Amendment searches) is treated as largely irrelevant here, with a quick brush-off in footnote 1 on page 5 of the majority opinion. Justices Thomas and Gorsuch are much more enthusiastic about the positive law model and would make it the only test or the primary test for determining the scope of the Fourth Amendment, respectively. The Policy Model, involving a tradeoff between costs and benefits of government surveillance, is nowhere to be seen in the majority opinion. The result of Carpenter is that law enforcement investigations will get much more difficult, and the police will have to curtail their use of particular surveillance techniques after this decision. This consequence is something the dissenters bemoan, but the majority basically shrugs and says what the Court said in Riley – “get a warrant.”
  6. Is Katz a Dog? Justice Thomas says we should get rid of the Katz test. His is a very lively opinion. Neither Gorsuch nor Alito join him, though Gorsuch expresses some sympathy. Justice Thomas was very generous to cite an article that Matthew Kugler and I wrote on page 17. Then on page 19 he embraces a view of Fourth Amendment circularity that is called into doubt by the same article he cited and mostly refuted by its subsequent companion piece. Maybe this is why the Chief Justice is reluctant to cite legal scholarship. Look, any reliance on scholarship is going to be selective – that’s the difference between opinions and scholarship, and even strategic selectivity is less concerning in a dissent than in a majority opinion. So my quibbles notwithstanding, Justices Thomas and Gorsuch deserve credit for engaging with some of the key pertinent scholarship and taking important ideas seriously.
  7. Which Alito? With Justice Alito, the big question heading into this case was always which part of his Jones concurrence would control – the part viewing the installation of a GPS tracking device as a clear search, or the part calling out for legislative rather than judicial resolution of these kinds of questions. The answer seemed very clear after oral argument and it’s manifest in his opinion. Legislatures, not judges, should be making these judgments. Congress did that here through the statute and the justices should stay out of the way.
  8.  Gorsuch is asking the big questions. I think the majority reached the right result in Carpenter for many of the right reasons. That said, I’m a fan of the Gorsuch dissent, and it’s certainly my favorite of the five opinions. A lot of law students are going to really love it and find the candid analysis clarifying and tantalizing. Justice Gorsuch is doing what a lot of Fourth Amendment scholars have wanted the Court as a whole to do for a long time — examine in a clear-headed way the meta question of how the Court decides whether something is a search. Here too, though, we can quibble with Justice Gorsuch in some respects — he spends some time talking about the foundational piece of empirical Fourth Amendment search scholarship – Slobogin and Schumacher’s fabulous Duke Law Journal paper and uses its data to note that “judicial judgments often fail to reflect public views.” It is true that Slobogin and Schumacher point to some divergences, but to me the main take-away of their piece is that the public largely agrees with much of the search hierarchy that the Court has built, with a few exceptions like the government’s use of undercover agents. If you think that judge – citizen divergences are the rule rather than the exception it is a lot more tempting to toss overboard the probabilistic approach to the Fourth Amendment’s scope. But the data from Slobogin and Schumacher and subsequent work by others strongly suggests that those divergences are more the exception than the rule. In any event, the influence of Baude and Stern’s Positive Law Model on Justice Gorsuch is obvious, and he gets bonus points for even staying current with the SSRN draft of a forthcoming Stephen Sachs piece.   
  9. Wither the third party doctrine? The most important sentence in Justice Gorsuch’s opinion appears at page 20: “Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that.” Justice Gorsuch is going to be on the Court for a very long time and he is signaling that in a properly presented case he will reject the third-party doctrine. That’s huge. What is less certain is whether his characterization of the majority opinion is apt. I suspect his description applies to some but not all of the justices in the Carpenter majority.
  10. A New Fourth Amendment. At the end of the day, it’s that last point about the third-party doctrine that is the real show-stopper. Carpenter upsets the apple cart of Fourth Amendment jurisprudence in a fundamental way. In some previous cases the lower courts had pushed back against the third party doctrine (think of Warshak – the 6th Circuit’s email case, to which the DOJ acquiesced) or individual justices had done so in concurrences (Justice Sotomayor in Jones, most famously), but presumably many scholars are going to regard Carpenter as the beginning of the end for the third-party doctrine. Verizon and AT&T and Apple and Google and Amazon are collecting an enormous quantity of sensitive information about all of us, and the Supreme Court is now saying explicitly that our sharing of that information with these companies is not tantamount to consent that it be shared with the government. We are moving towards a world of the Internet of Things, automated license plate readers, proliferating facial recognition software, drone delivery, connected self-driving cars, and rapid further technological change. The lengthy Carpenter opinions are a treat to read. But they will be the gift that keeps on giving — Today the Court just made Fourth Amendment law a lot more interesting for the next decade or three.

— Lior Strahilevitz

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1 Response

  1. Kiel brennan-marquez says:

    Thanks for this post – terrific summary. Just one small addendum. The academy forefather of the “time machines” theory is Stephen Henderson. (Paper available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2643613)

    I couldn’t agree more that Nate used the metaphor to great effect at argument. Well done Nate!