Friday, June 22, 2018

Justice Kennedy Finds Privacy Outside But Not Inside The Fourth Amendment

by Michael Dorf

In today's ruling in Carpenter v. United States, the Court, in an opinion by Chief Justice Roberts joined by the Court's four liberal-leaning justices, finds that collection of cell phone tower location data from a mobile phone provider constitutes a search within the meaning of the Fourth Amendment, thus presumptively requiring probable cause and (absent exigent circumstances) a warrant. Here I want to note what looks like a glaring inconsistency between Justice Kennedy's Carpenter dissent and his approach to the constitutional right to privacy in other contexts.

Justice Kennedy offers a number of grounds for his disagreement with the majority. Partly, he disagrees with the distinctions the Court draws between this case and prior cases involving the so-called third-party doctrine, under which law enforcement officers need not obtain a warrant to use judicial process to inspect someone's ostensibly private information from a third party with which that person has shared the information, typically a business. As Prof. Colb explained in a Verdict column previewing Carpenter and at greater length in a Stanford Law Review article, the third-party doctrine is profoundly flawed. Sharing your bank statements with your bank hardly should count as an invitation to the police to review them.

Nonetheless, the majority does not overrule the third-party doctrine in Carpenter, and so the dissent cannot be especially criticized for failing to disavow it either. What Justice Kennedy says is that financial records and records of whom one has called are more private than one's movements in public, so that the distinction the majority draws is backwards. I think there's something to that, but there's also something to the point made by CJ Roberts for the majority, which is that cell phone tower information allows the state to be a kind of panopticon in a way that goes beyond the prior third-party cases.

But Justice Kennedy says something else that is unsettling. The majority applies the familiar 51-year-old test from Katz v. United States, in which the question whether police investigation constitutes a "search" governed by the Fourth Amendment turns not only on whether the suspect has a property interest in the thing or area investigated, but on whether the suspect has a reasonable expectation of privacy. "Although no single rubric definitively resolves which expectations of privacy are entitled to protection," the Chief Justice writes, property rights are at most informative but not dispositive of reasonable expectations of privacy.

In separate dissents, Justices Thomas and Gorsuch are having none of it. They urge the abandonment of Katz in favor of a Fourth Amendment that protects property, not privacy. Justice Kennedy (whose dissent is joined by Justices Thomas and Alito) doesn't quite say that expressly, but he comes very very close. He writes that property is a good enough proxy for privacy and that without tethering "searches" to property, the Court's Fourth Amendment jurisprudence will become untethered from its text, which "protects only a person’s own 'persons, houses, papers, and effects.' "

It is true, of course, that one typically has a property interest in one's person, one's house, one's papers, and one's effects. But the essence of a Fourth Amendment violation is the privacy invasion, not the property invasion. Consider papers. Suppose that a police officer gains access to your private papers and takes pictures of them, thereby collecting the private data they contain but not depriving you of your property. The Fourth Amendment would be implicated not because papers are property but because they are private.

Indeed, just last month the Court--in an opinion by Justice Kennedy for a unanimous Court in Byrd v. United States--seemed to recognize as much with respect to "effects," when it held that the driver of a rental car could have a reasonable expectation of privacy in the car and its contents, even though not listed as an authorized driver on the rental agreement. The contract--which could govern the property interests for private-law purposes--was rightly deemed not dispositive of the question whether there was Fourth Amendment standing.

The biggest puzzle, however, is reconciling Justice Kennedy's newfound Fourth Amendment property formalism in Carpenter with his longstanding commitment to the constitutional right to privacy in substantive due process cases. Here are some selections from Justice Kennedy's majority opinion in Lawrence v. Texas, invalidating a Texas law that forbade same-sex sodomy, with emphasis added by me:
[Opening Line]: "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places." 
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." 
"The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."
So for Justice Kennedy, "liberty" in the Fourteenth Amendment--which, if we are being all textual about it, is only protected against deprivations lacking due process--protects privacy, but the Fourth Amendment--the spirit and history of which are obviously infused with concerns about government invasions of privacy--protects property but not privacy, at least not directly.

This is not a contradiction for the other dissenters in Carpenter. Justice Thomas dissented in Lawrence and Justices Alito and Gorsuch almost certainly would have dissented in Lawrence as well had they been on the Court at the time. But there is a genuine puzzle for Justice Kennedy.

To be clear, I don't mean to criticize the Court's substantive due process cases. I think that they would fit the constitutional text quite well if rooted in the Fourteenth Amendment's Privileges or Immunities Clause (as against state and local action) and the Ninth Amendment (as against the federal government). My point here is simply that if one can find privacy in the Fourteenth Amendment's Due Process Clause, then it should be child's play to find it in the Fourth Amendment.


Joe said...

Justice Alito is a curious case here since in the GPS case (as noted by Roberts here) he supported a "privacy" approach. In his separate opinion in that previous case, Alito draws a line, but it wouldn't be "property."

As to that, there was some implications in the past [such as during oral argument in the rental car case] that Gorsuch would define "property rights" in a broad sense & in their famous law review article that is in effect what Warren/Brandeis did.

I would also note and appreciate how Roberts noted past cases left open the issue of 24/7 surveillance, even in public places. Even someone like Orin Kerr thought the GPS case would go differently because it took place in a public place. The majority relied on property interests but 24/7 surveillance (as compared even to street cameras which can cover a lot of ground in a city) is a special violation of privacy & I appreciate Roberts' discussion, even if he only held the line, did not overturn, the third party rule.

Looking at the dissent, Kennedy seems to be particularly concerned about the implications here in the enforcement of criminal justice. There is a somewhat artificial line there but it pops up with him in various contexts.

Samuel Rickless said...

Hi Mike, I haven't read the opinions yet, but my initial thoughts are that the privacy that is relevant to 4A should not be assimilated to the privacy that is relevant to the Due Process clause of 14A (or 5A). The privacy relevant to 4A is informational: 4A protects something like the right against the government that it not obtain personal information in certain ways. The privacy relevant to the Due Process clause is decisional, a segment of the right to liberty: the Due Process clause protects something like the right to make decisions (and implement those decisions) concerning intimate and personal matters without government restriction. These two rights, both of which have come to be known as rights to privacy, should not be confused. It is possible to protect one without protecting the other, and it is possible for the government to violate one without violating the other. It is true that Griswold confuses the two rights, but that is a mistake that should not be read into the rest of the Griswold-Roe-Lawrence line of cases (nor should it be read into 4A cases). If that is right, then what you call the "biggest puzzle" about Kennedy's views in Lawrence and Carpenter is easily solved: the Carpenter right to privacy is not the same as the Lawrence right to privacy.

Asher said...

I've never believed this but it might just be that Will Baude is right and that Kennedy is an originalist and Lawrence et al. are originalist decisions (if very possibly wrongly decided as a matter of originalism). Kennedy could believe that the Fourteenth Amendment, as a matter of positive law and original meaning, just does protect privacy in a much broader (and less incidental) sense than the Fourth Amendment does. Your suggestion that the "essence," i.e., purpose, of the Fourth Amendment is about privacy, not property, ergo the Fourth Amendment protects privacy in things that aren't one's property, is very much the sort of purposivist norm-infused argument that Kennedy is often portrayed as liking and that I might have thought he would like, but if he actually is an originalist who's just been doing originalism very badly in substantive due process cases all these years, it wouldn't go over as well. His reading of the Fourteenth Amendment may not be underwritten by that kind of move; rather, he could simply believe that "liberty" is and was originally understood as a charter for judges to read present-day conceptions of liberty into the Fourteenth Amendment, that some deprivations of "liberty" are so great that it's impossible to deny them and satisfy due process, and so on. His Eighth Amendment jurisprudence could very easily be understood in the same way, and actually makes plenty of sense to me on originalist terms; if a state writes a very vague animal-cruelty statute in 1920, who would think that the legislature intended or that the 1920 public understood that that statute would only cover, in 2020, practices deemed cruel in 1920? Would the statute's meaning drastically change if the state legislature reenacted it a hundred years later, word for word? Would doing so replace its original 1920-conception-of-cruelty meaning with a 2020-conception-of-cruelty meaning, just by using the word "cruelty" in 2020 instead of 1920? I don't think so. That said, for superficially non-originalist moves like these to work in an originalist framework, you need some broad and evolving concept in the text, and Kennedy may not see one in "effects."

Joe said...
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Joe said...

"It is true that Griswold confuses the two rights, but that is a mistake "

Griswold (and more so Justice Harlan in his Poe v. Ullman dissent) references precedent that connects the two. If there is a confusion, it goes beyond that one case.

For instance, Justice Blackmun connected the two in his dissent in Bowers v. Harwick, the decision Lawrence v. Texas overruled. Planned Parenthood v. Casey (abortion) recognized the connection too. The opening of Lawrence:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

The "informational" concern is but one aspect of the 4A itself at any rate. A basic concern of the history there was to protect the home from invasion. It protects a place, not mere information. The Third Amendment reflects the same. This provides a "zone of privacy," which also includes a decisional aspect. Again, Harlan spoke of this as a general "liberty" interest in Poe v. Ullman & his dissent in effect later was recognized as authoritative. See, e.g., Casey.

It is possible to separate the two but the Supreme Court has repeatedly recognized overlap.

Marty Lederman said...

Minor objection: I don't think Gorsuch is "having none of it" -- indeed, he's having *more* of it, and his opinion is a more sweeping repudiation of the 3d-party doctrine, and the older subpoena doctrine, in all but name. Moreover, for him it doesn't turn on property rights--any legal right, including contractual, to prevent the trusted agent from disclosing the shared data would suffice, at least in a case where the person is compelled by the government (as opposed to assisting the government--and betraying the "first party"--by sharing the info (as in Smith and Hoffa). Or so I suggest here:

Shag from Brookline said...

Perhaps Eric Segall's next post on the originalism/non-originalism battlefield might riff off Asher's opening and closing sentences. Is Kennedy an originalist, and if so, which version? Bi-originalism? Was Scalia a bi-originalist?