an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Give the “Trespass” Test (and Judge Gorsuch) a Chance
Kiel Brennan-Marquez and Andrew Tutt
In 2012, when the Supreme Court held in United States v. Jones that police may not engage in prolonged GPS surveillance of a car on public streets without a warrant, many scoffed. Not at the outcome, which was widely applauded, but at the reasoning: the majority opinion, written by Justice Antonin Scalia, hinged on the fact that when the police installed the GPS device on Jones’ car, they committed an act of “trespass.” Scalia’s logic was proudly originalist: Trespassing to obtain incriminating information was forbidden when the Constitution was ratified; hence, it is forbidden today. By resolving the case that way, the Court sidestepped the privacy questions raised by surveillance technology like GPS and—as Justice Alito’s concurrence put it, voicing skepticism shared by many observers—“attache[d] great significance to something that most would view as relatively minor.”
Fast forward five years, and Jones has once again surfaced in the public conversation about privacy and surveillance—this time, because of Judge Neil Gorsuch’s confirmation hearing. Gorsuch, himself an originalist, has made no secret of his support for the Jones holding. In response to questioning from Senator Orrin Hatch last Tuesday, Judge Gorsuch opined that "attaching something to somebody else's property would be considered a search,” and “that if that's a trespass and a search 200 years ago, it has to be today.” In sum, argued Judge Gorsuch, “the technology changes, but the principles don’t.”
This proposition—that even as the world surrounding law changes, the core principles of law stay fixed—is central to originalist reasoning. We have no ambition here to resolve grand debates about the merits and demerits of originalism writ large. What we do wish to point out, however, is that a commitment to fixed principles of law, though often associated with efforts to limit the scope of fundamental rights, can also operate in the service of fundamental rights.
Jones itself underscores the point. As we recently argued in the pages of the Harvard Civil Rights-Civil Liberties Law Review, the “trespass” principle in Jones is best understood as an “offensiveness” test. Did the police employ a fundamentally offensive investigative method to collect evidence? If so, that method should meet with Fourth Amendment scrutiny—and require a warrant. One example, as in Jones, are investigative methods that require the police to physically intrude on private property. But the category is not so limited. Another example (we argue in the article) are investigative methods that involve intentional deception by law enforcement—such as United States v. Phua, a recent case in which the FBI cut off the internet to the defendant’s hotel room, and gained “consensual” entry by having agents pretend to be cable technicians answering a service call.
This test for offensiveness, it turns out, lines up with 18th-century expectations about the appropriate boundaries of state power. The Founders, too, worried about law enforcement officials behaving in ways that offend a person’s “dignitary interest” in the “inviolability” of his or her possessions.
To see what we mean, one need only look to United States v. Ackerman, a recent 10th Circuit opinion written by none other than Judge Gorsuch. As relevant here, the question in Ackerman was whether a warrant is required for law enforcement to open an email that has been flagged by an internet service provider (“ISP”) as likely to contain child pornography. The government argued that the answer should be no—because, among other reasons, people have no reasonable expectation of privacy in emails they have already shared with an ISP.
Rather than indulge that argument, Judge Gorsuch opted to apply the Jones test, which, he thought, “pretty clearly” forbids the “warrantless opening and examination of . . . private correspondence.” In reaching this conclusion, Judge Gorsuch analogized the opening of an email to the opening of a private letter, both of which “qualify as exactly the type of trespass  that the framers sought to prevent when they adopted the Fourth Amendment.” To be sure, whether opening an email amounts to a literal trespass (akin, say, to tampering with a parked car) is not self-evident; it’s a thorny and interesting question. But Judge Gorsuch sidestepped that question by pointing out that in the 18th century, the common law went to great lengths to protect individual dignity in the face of state power. That simple principle was the both the beginning and the end of the inquiry.
Cases like Ackerman complicate the idea, common in some media coverage of the confirmation process, that a judge’s penchant for constraining his legal reasoning to the application of very old principles tends to stunt the recognition of new rights. In some cases, the use of very old principles can have the opposite effect. They can help judges abstract away from the technological details and focus on what actually matters: whether the state has exceeded the bounds of its legitimate authority. In some domains, originalists do better—or at least, just as well—with this question as their progressive counterparts.
Does this mean that the principles of constitutional law laid down at the Founding are sufficient to contend with all the legal controversies we face today? No. Nor does it mean progressives should embrace all of Judge Gorsuch’s views simply because he, like Justice Scalia before him, tends to converge with liberal Justices on matters of law enforcement and criminal justice. But it does mean that progressives should not lose sight of the good that can come of applying very old principles of law—or of the notably careful way that Judge Gorsuch, in certain domains, has carried out that enterprise.
Kiel Brennan-Marquez is a postdoctoral research fellow at NYU Law School and an affiliated fellow at ISP. You can reach him by e-mail at email@example.com
Andrew Tutt is an Attorney-Adviser at the Office of Legal Counsel at U.S. Department of Justice, and was until recently a Visiting Fellow at the Yale Information Society Project. You can reach him by e-mail at firstname.lastname@example.org. The views expressed here are his alone, and do not necessarily reflect the views of the Department of Justice or the Office of Legal Counsel.