I frequently say it is important that the text of a document should drive our understanding of it, not the other way around.  This case regarding the need for a warrant to collect cell-site location information (CSLI) for an individual under investigation challenged my assumptions about the Fourth Amendment.  While the opinion that the release of CSLI data to law enforcement does require a warrant confirmed how I thought the law should work, there are some very interesting details, especially in the dissents that challenged that assumption.  We as Constitutionally minded people should care more about what the Constitution says than how we want it to work.

Court’s Opinion

Cell-site location information, or CSLI, are the records your phone carrier collects whenever your cell phone connects to a new cell site.  Since most of us carry our cellphones with us all day, this information can give someone a fairly detailed record of your movements.  The question Carpenter raised was: Is CSLI data covered under the Fourth Amendment?  Chief Justice Roberts, writing the opinion, found that this data is covered under the Fourth Amendment, but for some rather interesting reasons.

Thus, when an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.

CARPENTER v. UNITED STATES Syllabus

Roberts states that Fourth Amendment protections are incurred when someone “seeks to preserve something as private”.  I find this interesting since the language of the Fourth Amendment says nothing about a person’s desire, only that they are secure from unreasonable searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

U.S. Constitution, Amendment IV

This tiny little tidbit has to do with initiation of protection.  According to Chief Justice Roberts and those who concurred with the opinion, in order for me to keep information protected by the Fourth Amendment, I have to “seek to preserve” it as private.

The other reason the court found the way it did was a concern about how this case sits between two sets of court precedence, “a person’s expectation of privacy in his physical location and movements” and “a person’s expectation of privacy in information voluntarily turned over to third parties.”  In short, while the court has previously decided that the sharing of location data with a third-party would normally allow it to be collected by government officials without a warrant, the fact that this data is “detailed, encyclopedic, and effortlessly compiled” led the court not to extend the third party doctrine to this case.  (Look for my upcoming essay on the Fourth Amendment which includes a section on the third-party doctrine.)

A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. Allowing government access to cell-site records—which “hold for many Americans the ‘privacies of life,’ ” Riley v. California, 573 U. S. ___, ___—contravenes that expectation.

CARPENTER v. UNITED STATES Syllabus

The court uses the point that individuals “have a reasonable expectation of privacy in the whole of their physical movements” as the determining factor for the requirement for a warrant.  This originally seemed to me to be a reasonable position regarding an individual’s right to be secure in their persons.  While the court found this “right to privacy”, it also makes a point that this decision is meant to be interpreted narrowly, not disturbing remaining third-party doctrine precedence.

Dissenting Opinions

While four justices, Ginsburg, Breyer, Sotomayor, and Kagan join with Chief Justice Roberts in the opinion, the dissenting opinions are both numerous and interesting.  (The court’s opinion takes up 23 pages, while the dissenting opinions take up 91.)

Kennedy Dissent, joined by Thomas and Alito

The new rule the Court seems to formulate puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes. And it places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation.

CARPENTER v. UNITED STATES Kennedy Dissent

It appears the primary concern of these three justices is not the rights of the people, but that law enforcement investigations that will now have to actually get a warrant to acquire CSLI data.  Isn’t it interesting that these dissenters are concerned with the “accepted, lawful, and congressionally authorized”  investigations but not the Constitutionally authorized ones?  Their concern is that “law enforcement seeks to prevent the threat of violent crimes”, but not the rights of those being investigated.  While the FBI did get a court order to access these records, the standard for the order is “reasonable necessity”, meaning the government need only show to a government judge that they have a “reasonable need” to access the data.  In short, these three justices seem to think it quite reasonable to establish the power of government to investigate people with minimal suspicion, much less evidence, of wrong doing.  They support this position based on the fact that the court has held to it in the past.

The Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party.

CARPENTER v. UNITED STATES Kennedy Dissent

On the contrary, I find it quite unreasonable for the government to be allowed to search data or records about me without probable cause.  The Fourth Amendment does not protect the government’s ability to search based on “reasonable necessity”, but on “probable cause”.  The fact the previous courts have failed in their duty to apply the Constitution to cases before them does not give the justices cover to continue to do so.  Just because someone previously got away with bad behavior does not mean these men get to.

REASONABLE: Governed by reason; being under the influence of reason; thinking, speaking or acting rationally or according to the dictates of reason; as, the measure must satisfy all reasonable men.

Webster’s Dictionary 1828 – Online Edition

Here the only question necessary to decide is whether the government searched anything of Carpenter’s when it used compulsory process to obtain cell-site records from Carpenter’s cell phone service providers.

CARPENTER v. UNITED STATES Kennedy Dissent

Since the Fourth Amendment protects us from unreasonable searches of our “persons, houses, papers and effects”, the question we all should be asking is: What are our papers and effects in the modern world?  According to these three justices, business records held by a third-party, even though about you, are neither your papers nor your effects.  Therefore, as long as the government goes through some legal process to access those records everything is fine.  Do you find that reasonable?

Alito  Dissent, joined by Thomas

Justice Altio goes beyond Kennedy’s dissent, which he signed on to, to find more issues with the court’s opinion.

The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully
come to rely.

CARPENTER v. UNITED STATES Alito Dissent

Here it appears Justice Alito is also more concerned with the efficiency of law enforcement than the rights of citizens.

First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents.

CARPENTER v. UNITED STATES Alito Dissent

Justice Alito defines a search as one of your “private premises”.  Somehow an order for a third party to search their records is not a search because he calls it a “look through”.  Since I was not a part of the “looking through” of records, I’m sure they used some sort of “search algorithm” to find the records they werƒe looking for.

Second, the Court allows a defendant to object to the search of a third party’s property. This also is revolutionary.

CARPENTER v. UNITED STATES Alito Dissent

Justice Alito misses the point in that Mr. Carpenter didn’t object to the search of a third party’s property, but to that information being used against him in court.  (Funny how it wasn’t a search in his first point, just a “look through its own records”, but here it’s a search.)

Thomas Dissent

While agreeing with both Kennedy’s and Alito’s dissents, justice Thomas went further writing his own dissent.

This case should not turn on “whether” a search occurred. Ante, at 1. It should turn, instead, on whose property was searched. The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” (Emphasis added.) In other words, “each person has the right to be secure against unreasonable searches . . . in his own person, house, papers, and effects.” Minnesota v. Carter, 525 U. S. 83, 92 (1998) (Scalia, J., concurring). By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.

CARPENTER v. UNITED STATES Thomas Dissent

Justice Thomas points out a significant misunderstanding most people have with the Fourth Amendment.  The records obtained by the FBI were NOT the property of Mr. Carpenter, but of his cell phone carrier.  They created the records by recording the time and location Mr. Carpenter’s phone registered with a cell tower, maintain those records, control those records, and determine when and how to destroy those records.  The fact that those records were about Mr. Carpenter does not, under current law, grant him ownership.  As much as I wish it were otherwise, I have to agree with Justice Thomas that the Fourth Amendment, as it is written, does not cover information about someone only they create or own.

Gorsuch Dissent

In the late 1960s this Court suggested for the first time that a search triggering the Fourth Amendment occurs when the government violates an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.’” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). Then, in a pair of decisions in the 1970s
applying the Katz test, the Court held that a “reasonable expectation of privacy” doesn’t attach to information shared with “third parties.” See Smith v. Maryland, 442 U. S. 735, 743–744 (1979); United States v. Miller, 425 U. S. 435, 443 (1976). By these steps, the Court came to
conclude the Constitution does nothing to limit investigators from searching records you’ve entrusted to your bank, accountant, and maybe even your doctor. At that point what’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents— those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller taught the police that they can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But does anyone actually believe that?

What to do? It seems to me we could respond in at least three ways. The first is to ignore the problem, maintain Smith and Miller, and live with the consequences. If the confluence of these decisions and modern technology means our Fourth Amendment rights are reduced to nearly nothing, so be it. The second choice is to set Smith and Miller aside and try again using the Katz “reasonable expectation of privacy” jurisprudence that produced them. The third is to look for answers elsewhere.

CARPENTER v. UNITED STATES Gorsuch Dissent

While a rather long quote, I included it because I think Justice Gorsuch gets to the point of the matter.  The opinions in Katz, Smith, and Miller have eviscerated the Fourth Amendment, leaving everyday Americans with little protection of their property, privacy, and records either owned by them or about them.  Think of all the information you share via email or on Facebook, Twitter, or any other social media platform?  Do you use Google Docs, iCloud or OneDrive to store important documents?  How about online accounting software like is available for Quicken or Quickbooks?  Under Smith and Miller the court has found that you have no expectation of privacy for this information since you have entrusted it to a third-party.

Justice Gorsuch asks the $64,000 question: What do we do?

Miller held that a bank account holder enjoys no reasonable expectation of privacy in the bank’s records of his account activity. That’s true, the Court reasoned, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

CARPENTER v. UNITED STATES Gorsuch Dissent

The court found in both Smith and Miller that you have no expectation of privacy for any information you place in the possession of a third party, even if you have confidence that they will not betray your trust.  Leaving that in place destroys any possibility of privacy from government intrusion since they effectively put themselves between two private parties and the transactions they freely enter into.

Can the government demand a copy of all your e-mails from Google or Microsoft without implicating your Fourth Amendment rights? Can it secure your DNA from 23andMe without a warrant or probable cause? Smith and Miller say yes it can—at least without running afoul of Katz. But that result strikes most lawyers and judges today—me included—as pretty unlikely.

CARPENTER v. UNITED STATES Gorsuch Dissent

What, then, is the Court’s explanation for their third party doctrine? The truth is, the Court has never offered a persuasive justification. The Court has said that by conveying information to a third party you “‘assume[e] the risk’” it will be revealed to the police and therefore lack a reasonable expectation of privacy in it. Smith, supra, at 744.

CARPENTER v. UNITED STATES Gorsuch Dissent

So what happens if we get rid of the Smith & Miller decisions?

There’s a second option. What if we dropped Smith and Miller’s third party doctrine and retreated to the root Katz question whether there is a “reasonable expectation of privacy” in data held by third parties? Rather than solve the problem with the third party doctrine, I worry this option only risks returning us to its source: After all, it was Katz that produced Smith and Miller in the first place.

CARPENTER v. UNITED STATES Gorsuch Dissent

The answer is, we go back to the precedent of Katz, which started this whole third-party doctrine mess in the first place.

The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.

CARPENTER v. UNITED STATES Gorsuch Dissent

In short, the “expectation of privacy” appears no where in the Fourth Amendment; it is the creation out of whole cloth by the court in the Katz opinion.

My Conclusion

I admit, I want information about me to be protected, regardless of whether it is in my possession or not.  Unless I voluntarily expose that information to the public, I want the government to prove probable cause before they go searching through it.

So while I believe the court’s opinion matches the expectations of most Americans, it does not follow the letter of the law.  It appears the court tried to do the right thing the wrong way and for a very wrong reason.  In addition, some of the dissents show a continuing and disturbing leaning of the court to support government efficacy above personal rights and liberties.  According to the court, “Miller and Smith hold that individuals lack any protected Fourth Amendment interests in records that are possessed, owned, and controlled only by a third party”, but that misses the question at hand.  In the modern world, our persons, papers and effects extend beyond simple physicality.  Does my “person” include information about where I am or what I’m doing?  Do my “papers” include documents and other information that I store in the cloud?  

It is well past time for Congress to propose another amendment to our Constitution by extending the recognition of papers and effects to the digital world and to protect records about us as well. 

The right of the people to be secure in their persons, houses, documents, papers, and effects, including data and records created by them or about them, against unreasonable searches and seizures, shall not be violated,

Proposed Amendment Language

Congress passed the HIPAA law in part to protect the privacy of our medical records, records we do not create, own, or posses.  It is time they protect all of the records about us and this time do it the right way.  Otherwise we will continue to live at the mercy of what those in black robes consider “reasonable”.

Author: Paul Engel

Paul Engel founded The Constitution Study in 2014 with the goal of helping everyday Americans read and understand their Constitution. Author, blogger, podcaster and speaker, Paul writes and podcasts at http://constitutionstudy.com. You can also find his books at http://amazon.com/author/paulengel

Leave a Reply

Please Login to comment
  Subscribe  
Notify of