Justice Alito may have signaled that some of the worst of “reasonable expectations” doctrine is on the way out. United States v. Miller and Smith v. Maryland appear to be in the Court’s sights. He asked Carpenter’s counsel, apparently genuinely, “How much existing precedent do you want us to overrule or declare obsolete?”
Miller and Smith are standard bearers of the “third party doctrine.” Miller denies that people can have a Fourth Amendment interest in financial records they have shared with others. Smith does the same to telecommunications data. Both are products of “reasonable expectations” doctrine.
But the discussion came alive and took on a new structure when Justice Gorsuch raised and then pressed an alternative vision for administering the Fourth Amendment. If data were recognized as property, he demanded of the government’s counsel, wouldn’t it be a seizure and search to take it and examine it? Whether under state common law or federal telecommunications law, there is a good argument that telecommunications users have property rights in the data about them produced by their usage.
This morning in The Wall Street Journal, I suggested that the Court should eschew the flabby “reasonable expectation of privacy” test. Instead, the Court should look clear-eyed at the text of the Fourth Amendment and the facts of cases. If there has been a seizure or search of persons, houses, papers, or effects, the question is whether that is reasonable. That almost always means getting a warrant. Property rights should delineate when someone can assert Fourth Amendment rights in protected things, including digital data, which are constitutional papers and effects.
Basing predictions on oral argument is always fallible, but the case had much of the flavor of United States v. Jones. In that case, a unanimous Court held that it was wrong to attach a GPS device to a car and track a suspect with it absent a warrant. But the Jones Court was sharply divided as to rationale. Justice Scalia wrote the five-judge majority opinion, which declared that such activity is a search that requires a warrant. Justice Alito agreed with the outcome, but preferred to base the decision on privacy expectations. The very same thing could happen again, with Justice Gorsuch taking over the property rights role from Justice Scalia.
An alternative outcome has Chief Justice Roberts writing the case. Dealing with searches of cell phones, he wrote crisply in a recent case about what government agents have to do: “get a warrant.”
In short, the outcome of Carpenter will probably go the right way for Fourth Amendment privacy and the security of our digital data. Whether it uses the right rationale is very much up in the air.