Carpenter's Curiosities (and its Potential to Unsettle Longstanding Fourth Amendment Doctrines)

Marty Lederman

Not surprisingly, there are already a slew of reactions to the Court's landmark decision on Friday in Carpenter v. United States.  Most observers understandably have focused on two major aspects of the ruling:

(i) The Court held that customers have at least some "reasonable expectation of privacy" in the cell-site location information (CSLI) records that their service providers maintain about them--a new "exception" to the so-called "third-party doctrine," and thus a repudiation of the principle the Court announced in Smith v. United States that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”  (Such a categorical principle was obviously vulnerable and inadequate from the outset--indeed, it can't be reconciled with the landmark Katz holding itself, in which he Court found that Katz had at least some reasonable expectation of privacy in information that he "voluntarily" shared with a third party, namely, his bookie.)  After the Court's decision in Carpenter, the fact that one has shared information with a third party is relevant to the Fourth Amendment analysis but it does not, in and of itself, resolve the question of whether an expectation of privacy in that information is legitimate, and thus subject to some Fourth Amendment solicitude, including in cases where the state directs the third party to produce the records. 

(ii) Carpenter also confirms the Court's recent willingness to shape its Fourth Amendment doctrine to address the extraordinary new technological surveillance capabilities of the state--in particular, its ability to glean huge amounts of detailed information about individuals, without significant cost, using computer searches of now-ubiquitous databases that track our every transaction, communication, and movement.  (In this respect the best early take, emphasizing the possible implications of Carpenter for "bulk" foreign intelligence surveillance collections, is this piece by David Kris.  [UPDATE:  And this post by my colleague Paul Ohm is also must reading.])

Those aspects of the decision are certainly momentous, but they don't begin to tell the whole story.  Indeed, at least on my preliminary first reading, Carpenter appears to be even more extraordinary and groundbreaking than the initial reports have suggested, for at least three reasons.

1.  It's actually a 6-3 decision--and Justice Gorsuch's rationale might be even broader than the Chief Justice's


The decision has widely been described as a 5-4 split, with the Chief Justice joining the four more liberal Justices.  That's understandable, given that the other four Justices did purport to "dissent" from the disposition.  Justice Gorsuch's separate opinion, however, is in all practical respects even more protective of Fourth Amendment rights than the Chief Justice's (or it would be, anyway, if Gorsuch applies his rationale in future cases).

The first 11 pages or so of Justice Gorsuch's opinion effectively convey the confusion and frustration most newcomers sense when they first confront the Miller/Smith third-party doctrine and Katz's "reasonable expectation of privacy" principle.  Justice Gorsuch vividly describes how difficult it is to think though the problems in this area under the constraints of these undertheorized doctrines.  In particular, he does a nice job demonstrating how the usual justifications for the third-party doctrine are woefully inadequate and how they would lead to deeply counterintuitive results.  For a quick and useful introduction to this area of the law, one could do a lot worse than starting here.

Then, in the next eight pages of his opinion, Justice Gorsuch offers a tentative solution to his dilemma:  "There is a another way," he confidently declares.  Truth be told, however, Justice Gorsuch is less than crystal clear on just what that "other way" consists of (and admirably candid in acknowledging that he hasn't quite settled on his precise approach yet).  Here's my best shot at untangling it:  As I read his analysis of "third party" cases, he would hold that if Party A "entrusts" information about herself to Party B and has a reasonable expectation that Party B will keep it "private"--and a concomitant "positive law right," based upon a promise or contract or property right or statute, that Party B will honor the confidentiality of the information by not sharing it with others--then the state's effort to compel Party B to disclose that information triggers Fourth Amendment scrutiny (i.e., is a "search"), and at least presumptively requires a warrant based upon probable cause to believe that the records contain the fruits, instrumentalities, or evidence of a crime.  Moreover, he suspects that this rule might apply to the CSLI maintained by your cell-phone service provider--information that you convey to the provider as a condition of service.

This Gorsuch "test," in turn, is based upon two key suppositions:  First, CSLI is, in his words, a "modern-day equivalent[] of an individual’s own ‘papers’ or ‘effects,’" regardless of whether the individual has a property law interest in the CSLI.  This is one of the principal differences between Gorsuch and the other three "dissenters":  Justices Alito, Thomas and Kennedy insist that CSLI records do not trigger the Fourth Amendment because they are not the modern-day equivalent of the customer's "papers or effects."  The Roberts opinion for the majority, by contrast, does not deal wth this question at all, because it follows the lesson of Katz that the Fourth Amendment is not literally limited to intrusions upon persons, houses, papers and effects.*

Second, Gorsuch recognizes that "the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them."  He uses common practices to illustrate his point:  "Ever hand a private document to a friend to be returned?  Toss your keys to a valet at a restaurant?  Ask your neighbor to look after your dog while you travel?  You would not expect the friend to share the document with others; the valet to lend your car to his buddy; or the neighbor to put Fido up for adoption."  He also rejects the reasoning of the Court in Smith that by conveying information to a third party one “assum[es] the risk” that the third party will reveal it to the police and therefore lack a reasonable expectation of privacy in it--particularly in the case where the third-party chooses to honor, rather than betray, your confidentiality:  "Suppose I entrust a friend with a letter and he promises to keep it secret until he delivers it to an intended recipient.  In what sense have I agreed to bear the risk that he will turn around, break his promise, and spill its contents to someone else?  More confusing still, what have I done to 'manifest my willingness to accept' the risk that the government will pry the document from my friend and read it without his consent?"

OK, so what's the upshot of Justice Gorsuch's "positive law right" theory?  Some readers have assumed Gorsuch is simply asking whether the defendant has a property-law interest in the information.  No doubt a property-law right would almost certainly be sufficient on Gorsuch's view.  As my description above suggests, however, I don't read his opinion as indicating that it's necessary to invoke property law, or that Party A's "positive legal right" to Party B's confidentiality might not arise from some other legal source, such as a statute or, most importantly, a confidentiality agreement.  Gorsuch notes, for example, that a bailee "normally owes a legal duty to keep [an entrusted] item safe, according to the terms of the parties’ contract if they have one," and he also writes that "[p]eople often do reasonably expect that information they entrust to third parties, especially information subject to confidentiality agreements, will be kept private."  To be sure, he notes that the protections Congress has established for CSLI in 47 U. S. C. § 222 "might even rise to the level of a property right"; it's noteworthy, however, that he does not suggest that Fourth Amendment protection depends upon whether they do so.  (It's possible, I suppose, that Gorsuch or others might consider all of this a form of "new property," no matter the source of the confidentiality obligation.  The label doesn't matter, however--the important point is that the customer can bargain for the right to have the service provider maintain confidentiality, at which point presumably the Gorsuch theory of constitutional protection would kick in if the state tries to compel or induce the provider to breach that confidentiality.)

Importantly, Gorsuch also emphasizes that it would not be fatal to the Fourth Amendment claim that the "positive legal right" includes a carve-out that allows or requires Party B to disclose the information to the government:  "Legislatures cannot pass laws declaring your house or papers to be your property except to the extent the police wish to search them without cause."  The important question for Gorsuch, it seems, is whether Party A generally has legal right to prevent Party B from breaching confidentiality, apart from whether that right extends to the government.  (In this respect, Justice Gorsuch's opinion owes an obvious debt to Will Baude and James Stern's The Positive Law Model of the Fourth Amendment, which he cites.  See especially pp. 1871-76 of the article, and page 1879 ("If the government forces a telecom provider to breach a contractual obligation to its subscriber, a Fourth Amendment search plainly occurs.").  As I read his opinion, though, Justice Gorsuch is less concerned about whether the law prohibits other private parties from interfering with the relationship between Parties A and B (the principal inquiry of the Baude/Stern proposal), and more concerned with whether Party B has a legal duty of confidentiality in the first instance.)

Just as significantly, Justice Gorsuch--like the Chief Justice (see Point 3, below)--notes that the Fourth Amendment protection does not disappear simply because the state has used a subpoena to try to compel Party B to disclose:  "No one thinks the government can evade [Ex parte Jackson’s] prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for 'all letters sent by John Smith' or, worse, 'all letters sent by John Smith concerning a particular transaction.'”  (For what it's worth, this is a fairly bold and confident claim by Justice Gorsuch about what "no one thinks."  To be sure, "no one" should think such a thing after Carpenter, but my understanding is that many people did, in fact, think exactly that about the breadth of the subpoena power until last week--indeed, that's the upshot of much of Justice Alito's dissent.)

Justice Gorsuch's opinion, therefore, appears to be even broader in terms of Fourth Amendment protection than the Chief Justice's--indeed, it includes as comprehensive a repudiation of the third-party doctrine as any I've seen from a Justice.

Moreover, the Chief Justice's majority opinion identifies several other contexts that he specifically insists the Court's resolution of Carpenter does not resolve:  a order to compel production of "real-time CSLI"; “tower dump” downloads "of information on all the devices that connected to a particular cell site during a particular interval"; "conventional (?!) surveillance techniques and tools, such as security cameras"; "other business records that might incidentally reveal location information"; "other collection techniques involving foreign affairs or national security"; and possibly even CSLI records for a period shorter than seven days (something that's suggested in footnote 3, although the Court's actual holding ("The Government’s acquisition of the cell-site records here"--which included only two days of records from SPRINT--"was a search under [the Fourth] Amendment.")) is not so limited).

Justice Gorsuch's rationale, by contrast, is not so limited--it would appear to apply to most, even if not all, of the cases on which the Chief Justice reserves judgment.

On the other hand, Justice Gorsuch himself signals some trepidation about the implications of his own reasoning.  For example, he writes that "we must be wary of returning to the doctrine of Boyd v. United States, " which restricted the use of subpoenas "even for ordinary business records."  Gorsuch does not say why his theory doesn't suggest just such a "return" to Boyd--unless, perhaps, he intends to provide greater Fourth Amendment protections to individuals than to business entities.  He also, oddly, styles his opinion as a dissent rather than as a concurrence, even though he appears to acknowledge that customers do have a "positive legal right" under 47 U.S.C. § 222(c)(1) to prevent their service providers from "disclos[ing], or permit[ting] access to, individually identifiable” CPNI without the customer’s consent.  Why wasn't that fact--the existence of that "positive law" right of confidentality--enough to compel Gorsuch to rule for Carpenter?  He writes that he is "reluctantly" compelled to conclude that Carpenter "forfeited" the "positive law" argument--in a way that would preclude Justices from relying upon it!--by not raising it below and by only giving it "cursory" treatment in the Supreme Court.  Carpenter's lawyers, however, afforded it much more than cursory treatment (see pages 21-23 and 31-34 of their opening brief, and their reply brief at pages 9-10, 14-15) and, in any event, Justice Gorsuch, like other Justices, often relies upon rationales that were not, or were barely, raised by the parties.  The "forfeiture" argument, then, appears to be a makeweight.

The better explanation--even if it doesn't quite explain why Gorsuch "dissents"--is that Justice Gorsuch has not quite fully worked out his theory to the point where he's comfortable relying upon it.  Which is fine, of course:  he evidently shares Roberts's view that the Court should "tread carefully . . . to ensure that we do not 'embarrass the future.'”  There's not much point in debating just what the "true" implications of Gorsuch's opinion are:  Because he hasn't yet himself worked them out, only time will tell.  The important point going forward, however, is that even if one of the Justices who joined the Roberts opinion is wary about extending the holding or reasoning of Carpenter to one or more of the other contexts specifically reserved by that opinion, that doesn't necessarily mean that there aren't five Justices willing to do so, because Justice Gorsuch appears to be amenable to even broader protections than those identified in the Roberts opinion in at least some cases where the defendant has a "positive legal right" to the confidentiality of information and, in the context where she has "entrusted" such information to a third party, where she has a "positive law right" to compel the third party to honor that confidentiality.

Accordingly, here are a couple of obvious lessons for future customers and advocates:  (i) Secure comprehensive confidentiality agreements wherever possible; and (ii) do not forget to rely upon them, and other "positive legal rights," in legal challenges to government acquisitions of, and orders for production of, information databases, because your fifth vote might well depend upon it.

2.  Acquisition of a database as the "search" that requires a warrant supported by probable cause


* Justice Kennedy tries to re-write Katz as if it were a case involving "reliance on property-based concepts" involving domiciles such as the "home," in which the Court's holding depended upon viewing the phone booth in that case as analogous "to a friend’s apartment, a taxicab, and a hotel room," such that Katz "had a temporary interest in the space and a legitimate expectation that others would not intrude."  In fact, the Katz Court rejected that view, famously explaining that an "effort to decide whether or not a given 'area,' viewed in the abstract, is 'constitutionally protected' deflects attention from the problem presented by this case," because "the Fourth Amendment protects people, not places," and held that Katz had at least some constitutional interest in the confidentiality of the information he had shared with his bookie.

Even Justice Kennedy appears to concede that some information can be the modern-day equivalent of a person's "papers" even after he has conveyed them to a third party to hold (e.g., the contents of letters; emails held by an Internet service provider), in a way that could trigger Fourth Amendment scrutiny when the state tries to compel the third party to produce them.  Justice Alito expressly, and Justice Kennedy implicitly, tries to distinguish CSLI records from these examples on the ground that "Carpenter did not create the cell-site records."  But of course in every practical sense, he did:  Carpenter might not have compiled the CSLI in the form it was maintained by his service providers, but he conveyed to those providers the data themselves--that is, the information about where he and his cellphone were at all times.

** Although the Court has been very deferential to the state in the context of subpoenas, it did intimate, in one of its seminal modern decisions, that the Fourth Amendment "guards" (“at the most") "against abuse . . . by way of too much indefiniteness or breadth in the things required to be ‘particularly described.'"  Oklahoma Press, 327 U.S. at 208.  Perhaps Chief Justice Roberts's and Justice Gorsuch's opinions in Carpenter can be understood as holding, or at least implying, that a subpoena for vast databases such as the CSLI records in Carpenter are too "indefinite" or too "broad" in the sense that access to such databases empowers the government to engage in the modern-day equivalent of the sort of "general warrant" that allowed British officers to rummage through the homes of colonists "'in an unrestrained search for evidence of criminal activity'" (Carpenter, quoting Riley)--which was one of the principal evils that animated ratification of the Fourth Amendment.  If this is a plausible reading, then perhaps Carpenter might over time become the source of a reinvigorated doctrine about the permissible scope of subpoenas writ large, which would itself be a major development, seeing as how many lower courts are predisposed to approve subpoenas for vast reservoirs of records that can be mined by the state for evidence of wrongdoing (i.e., what some might characterize as "fishing expeditions").  To be clear, however:  The Carpenter decision as written is not, by its terms, about heightened standards for subpoenas themselves, but instead about when a judicial warrant supported by probable cause is required, i.e., when a subpoena just won't do.
Posted 1:30 PM by Marty Lederman [link]