Justice Gorsuch, Carpenter, & the Fourth Amendment [POLICYbrief]
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Justice Gorsuch, Carpenter, & the Fourth Amendment [POLICYbrief]


In Carpenter v. United States, Timothy Carpenter participated in a string of armed robberies in 2011. He and his co-conspirators were robbing a string of Radio Shack and T-Mobile stores, ironically for cell phones. And later, one of the co-conspirators, gave
his personal cell phone number to the FBI, and the FBI then under the Stored Communications Act was able to obtain Carpenter’s location information, which is conveyed via his cell
phone every time you make or receive a call. The main question before the court in Carpenter was whether an individual has a reasonable expectation of privacy in the data conveyed day-to-day via their cell phone. So the Supreme Court ruled 5-4 that the location data used to convict Timothy Carpenter, which was accessed by law enforcement through the third-party provider, was subject to a warrant, that a subpoena under the Stored Communications Act was not enough to access that data. In his dissent, Justice Gorsuch argued that Timothy Carpenter had a property interest in the data conveyed by his cell phone to his third-party provider. He argued that it is that property interest
in data that makes it subject to Fourth Amendment protection. The majority opinion in Carpenter ruled that in order to enjoy the protections of the Fourth Amendment, you shouldn’t have to opt of modern society, that the protections in the Fourth Amendment should apply to cell phone location data. Two cases in the 1970s, United States v. Miller, and Smith v. Maryland, articulated the Third-Party Doctrine for the first time, which is that
when a person conveys information to a third-party provider, that person has no reasonable expectation of privacy in that information. Both of the cases rely upon the defendant
voluntarily conveying that information. For example, in Smith v. Maryland it was held that there’s no reasonable expectation of privacy in the numbers that are in a Pen Register because a person knew that that information was being conveyed. The same in Miller, although that was bank transactions. When you go to a bank and cash a check or make a deposit or do anything that creates a record there through the third party, then you have no reasonable expectation of privacy in that transaction because you willingly
and voluntarily convey that information. Following these two cases, the court ruled that one has privacy in their day-to-day movements, and the tracking of their movements by law enforcement. And this was based largely on trespass-based theory. In Jones, law enforcement agents had attached a GPS tracking device to the vehicle, and that formed the basis of their reasoning in
Jones was that trespass that occurred when the law enforcement officer affixed a GPS
device to the vehicle. In the United States v. Carpenter, there were four justices who wrote dissenting opinions, and Justice Gorsuch’s opinion … He really
took issue with the fact that the Court did not go far enough in rejecting the Third-Party Doctrine. He criticized the Court for, as he said, “keeping Smith and Miller on life support.” Here he thinks that the Third-Party Doctrine has evolved in a way that is at odds with the text of the Fourth Amendment. As Gorsuch said in his dissent in Carpenter, “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 teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private, but no one believes that, if they ever did.” In United States v. Carpenter, we’re discussing essentially the same type of tracking, the same movements of the same data points, but they’re conveyed unwittingly to a cell phone provider, to a third party. Whereas in Jones it required the attachment of physical hardware. In his dissent, Justice Gorsuch argued that under the property rights-based theory of the Fourth Amendment, Timothy Carpenter had a property interest in his cell phone data. As he stated in his dissent, “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, 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 of
privacy is a ‘reasonable’ one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected beings, your person,
your house, your paper, or your effects, is unreasonably searched or seized. Period.” So just as Gorsuch really seeks to move away from that reasonable expectation of privacy analysis and towards his property-based approach, and in doing so he would move back closer to the text of the Fourth Amendment. Over the years since the 1970s, the Third-Party Doctrine, instead of being more of an articulation of when there is and is not a reasonable expectation of privacy, has kind of become an exception to the Fourth Amendment. Justice Gorsuch’s opinion is a good thing for those who are concerned about privacy. Um, essentially he’s arguing that the court
didn’t go far enough in discarding the Third-Party Doctrine, and that the Third-Party Doctrine, as technology has evolved, has become irreconcilable with the text of the Fourth Amendment.

3 Comments

  • WPLU572 Trunked Radio

    When it comes to privacy and the United States States Constitution, it's clear that there is no written right to privacy. However in the quote on quote emanations in the document apparently it has been construed not as what many of us think of his privacy but something more has a right to autonomy. We have the right to choose what we do and what we do not do. This is abundantly clear I'd say overall in the Constitution however using the term privacy seems to have led to some misinformed opinions regarding what the term means in this context. What others agree that I'm right to assess that privacy essentially means autonomy in this context? Great video as usual thank you

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