Thanks to Matt Tokson for posting his thoughtful and smart reactions to the Carpenter case. I offered some less thoughtful and less smart thoughts about Carpenter earlier on Friday. After reflecting on the case over the weekend, I thought I’d offer a little bit more analysis of how the Court got here and where things are going from here.
1. The Forgotten but Major Role of Douglas Ginsburg and the DC Circuit. Casebooks generally focus on Supreme Court cases rather than lower court opinions in cases where the Supreme Court ultimately weighed in, and that’s understandable. But the intellectual heavy lifting in the case that would ultimately become known as Jones was done by the lower courts, and in particular by Judge Ginsburg’s masterful and at-the-time radical 2010 opinion in United States v. Maynard. (The case’s name changed by the time it made it to SCOTUS, but it’s the same dispute.) Here’s a post from Orin Kerr in the immediate aftermath of the Maynard decision, which he described as “potentially revolutionary” but unpersuasive. To be sure, not everything that Judge Ginsburg wrote in Maynard eight years ago has come to pass, and the Carpenter Court is conspicuously less enthusiastic about the mosaic theory than the Jones concurrences were. But the idea that a comprehensive record of someone’s movements over time is deeply sensitive information got its most articulate defense by the DC Circuit, the DC Circuit opinion focused on the reasonable expectations of privacy analysis that was echoed in Carpenter rather than the narrower property theory that the Court ultimately adopted in Jones, and the fact that the opinion was the product of three of the country’s most widely respected appellate jurists (Ginsburg, Tatel, and Griffith) must have gotten the attention of Chief Justice Roberts, who served on the circuit court alongside all three (albeit briefly in the case of Judge Griffith.) With the benefit of hindsight I think we can now conclude that Maynard turned out to be “revolutionary” rather than “potentially revolutionary.” Maybe the Supreme Court would have eventually gotten to the same result in Carpenter anyway, but it’s entirely possible that the recent history would have played out very differently. And in remembering the role of the DC Circuit we should also note the contributions of Maynard’s court-appointed counsel (Sicilia Englert and Stephen Leckar) as well as the amici (the ACLU and EFF) in shaping the DC Circuit’s thinking. Maynard is worth a read or re-read for those seeking to understand how we got to Carpenter. 6/27 Update: Upon further reflection it’s worth noting that Judge Ginsburg’s opinion also anticipates the positive law model moves that Justice Gorsuch would later make in Carpenter, using several privacy tort law precedents (such as Nader and Galella) to develop the case for the idea that the Fourth Amendment protects geolocation privacy.
2. Where we go from here? I was curious about a hypothetical scenario after Carpenter and ran a very unscientific Twitter poll with the following scenario.
Here’s a hypothetical: Witness sees Uber black car speeding away from hit & run accident scene in NYC but doesn’t see plate or driver. Govt wants Uber to give it names of Uber drivers who were near scene at the time. After Carpenter does the government now need a search warrant?
The 41 people who responded split 20-21. I don’t want to make much of this kind of survey, but it’s a fun result. And I think there are very strong arguments in either direction. Uber drivers almost certainly have more situational awareness of their location being tracked by Uber than ordinary Americans do of their locations being tracked via cell towers. Matt’s research provides us with great data on the latter question. On the other hand, for an Uber driver sharing this information with Uber feels a little bit more free-choicey than the “choice” to use a cell phone, as nobody has to be an Uber driver, and for some of the drivers Uber presumably is only getting geolocation information while the drivers are using the app / on-the-clock, so the information collected isn’t quite as comprehensive. (I’m not an Uber driver so I don’t know for sure that drivers can turn off location services while they aren’t using the app. Consumers can do so.) And here the government just wants geolocation information at one moment in time, not over a long period of time.
If the government wants to figure out which Uber drivers were near the hit and run in question it is not at all clear that it can get a search warrant – there must be (at least) hundreds of black cars in New York and the car in question could be driven by any of their drivers. This hypothetical is essentially a slightly narrower version of the tower dump hypothetical about which the Court explicitly reserved judgment in Carpenter. It wouldn’t surprise me if the Court ultimately determines that cell tower dumps fall on the “search” side of the Fourth Amendment and these kind of “Uber dumps” fall on the non-search side under Miller and Smith.
Speaking of tower dumps, it will be interesting to see where Justice Gorsuch goes in those kinds of cases. From his opinion, it seems like he is still working these sorts of scenarios through and wants the benefit of briefing. From the positive law perspective, is using cell tower dumps to identify all the phones that were turned on within a half-mile radius of a tower a violation of one’s property rights? Probably, but the task of deciding is made harder by the lack of precedents. In the founding era, it would have been impossible for law enforcement to identify all the people within a half mile radius of a spot in Manhattan, especially when many of those people were indoors. So from the Gorsuch perspective, the government is turning peoples’ phones into an instrumentality for revealing their location, in some cases against their expectations and their wishes. Maybe that’s equivalent to a trespass to chattels? Justice Thomas, by contrast, would say that there’s no Fourth Amendment search of an individual here because cell phone carriers are collecting the information for business purposes and any property rights in the information belong to the companies rather than the cell phone users.
3. Hard issues for Gorsuch to work through. One of the things to admire about Justice Gorsuch’s dissent in Carpenter is that he is candid about what he has and hasn’t concluded. It is pretty clear that he is rejecting the third party doctrine, although not so much on originalist grounds as on the grounds that it does not comport with ordinary Americans’ actual intuitions. His discussion of Florida v. Riley (“Try that one out on your neighbors.”) and California v. Greenwood (“I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager.”) imply as much. Yet elsewhere in the opinion (page 7 of the slip op.) he also suggests that legislatures, not courts, are likely to have the best intuitions about peoples’ expectations. (He might be right about that if search-and-seizure law was written on a blank slate. But legislatures know that the courts have made themselves responsible for the bulk of criminal procedure law fine-tuning, and legislatures have devoted less attention to these issues than they otherwise would as a result. There are obviously some exceptions.) That’s not hypocrisy. It’s just an indication of what Matt said earlier – criticizing Katz is easier that developing a better alternative.
An even bigger challenge for Justice Gorsuch will be to decide what kind of positive law matters. Baude and Stern are very clear that they would include not only property law but also tort law and general purpose statutes as legal content that informs the Fourth Amendment’s scope. Justice Thomas embraces the narrower conception (property law only) and it seems that Justice Gorsuch is inclined to go broader. But how much broader? As broad as Baude and Stern? He doesn’t resolve that question in his opinion. And what if a statute bars some actors but not the government from engaging in conduct? For Baude and Stern, such a statute still brings conduct within the scope of the Fourth Amendment. But does it for Gorsuch? With the Court’s present composition, there are presumably going to be some cases where the Chief Justice parts company with the more liberal justices, and Gorsuch’s determination of how much positive law to include could prove decisive in a number of cases. Scholars like Baude, Stern, Richard Re, and others have made significant progress on those questions, but Gorsuch is someone who pays attention to what’s happening in legal academia, so this is a spot where contemporary scholars with big ideas can have a major impact.
— Lior Strahilevitz