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.