Gorsuch’s dissent in ‘Carpenter’ case has implications for the future of privacy

In a decision lauded by privacy advocates, the Supreme Court ruled 5-4 on Friday that the historical cell phone location data used to convict Timothy Carpenter of armed robbery is subject to Fourth Amendment protections. In Carpenter v. United States, police were able to obtain location data from his wireless provider using the lower standards of the Stored Communications Act (SCA) without the finding of “probable cause” required to issue a search warrant.

The decision reversed a ruling by the U.S. Court of Appeals for the Sixth Circuit that Carpenter had no reasonable expectation of privacy in the location information that was conveyed to his provider. The appeals court grounded that decision in the third-party doctrine, first articulated by the Supreme Court in United States v. Miller (1976) and Smith v. Maryland (1979). In those cases, the High Court concluded that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

{mosads}In Carpenter, the court relied on United States v. Jones, a 2012 case involving the attachment of a GPS device to a vehicle, which held that “an individual maintains a legitimate expectation of privacy in the record of his physical movements.”

Cell phone location data provides precise information about one’s physical movements, made possible by the huge number of cell phone towers.  For instance, just within a one mile radius of the Supreme Court, cell phone signals are intercepted by any number of the 404 antenna and 50 towers within that radius, as frequently as every few seconds. The resulting information is then stored by a third-party provider for up to five years.

This tracking does not depend on the phone user making any calls. Any activity on the phone will cause the user to unwittingly transmit location data when the device automatically connects. This reality is the foundation of the court’s ruling that the third-party doctrine does not apply because cell phone data is not voluntarily conveyed. As Chief Justice John Roberts explained in the majority opinion, “a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up.”

Despite the court’s correct conclusion that the government’s collection of Carpenter’s location data was both invasive and involuntary, their analysis stopped there as the majority kicked the can down the road by not confronting the third-party doctrine head-on. Instead, the majority relied solely on the nature of the data in question to divorce the case from precedent, asserting that “there is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers.”

Justice Neil Gorsuch, in his lone dissent, expressed disappointment that the third-party doctrine was not more broadly revisited. Although Gorsuch filed one of the four dissenting opinions (the most written in a single case since Obergefell in 2015), his dissent went farther than the majority and was more like a concurrence on other grounds. The technical reason for Gorsuch deeming it a dissent was that Carpenter’s lawyers did not make the property-based argument Gorsuch favors.

Rather than focus on the reasonable expectation of privacy analysis typically engaged in by the court in recent decades, Gorsuch’s dissent argues that the court should follow a property rights-based theory of the Fourth Amendment. Under that theory, Carpenter had a property interest in his cell phone data. Gorsuch’s decision to file a dissent may send a message to future defendants that without inclusion of a property-based argument his concurrence cannot be counted on.

Gorsuch’s focus on the property rights argument was foreshadowed by his rulings while serving on the Tenth Circuit. In United States v. Ackerman (2016), Gorsuch invoked property interests in extending Fourth Amendment protections to digital property, applying trespass theory to email. Oddly, in addition to applying a trespass test, the Ackerman court also applied the reasonable expectation of privacy test. Some have theorized that that this was intended to provide a foundation for the tests to be applied as coequals, with the ultimate goal of reuniting trespass theory and the Fourth Amendment.

Also of note in Gorsuch’s Ackerman opinion was his indication that the third-party doctrine needed to be revisited. It is clear that the views Justice Gorsuch expressed in his Carpenter dissent were well-formed prior to the case.

Although the Carpenter majority did not revisit Miller and Smith, it nonetheless put a substantial hole in the third-party doctrine by indicating it is no longer the bright-line rule it once was. That alone makes the ruling a major victory for privacy rights that will reign in the increasing tendency of the government to use subpoena power to circumvent the higher standards of a search warrant. Carpenter may well cause law enforcement to adjust their practices and seek a warrant when searching the digital data that is so pervasive in our lives today.  

Ultimately, the future of Fourth Amendment jurisprudence may be in the hands of Justice Gorsuch, who has clearly indicated that the third-party doctrine is irreconcilable with the text of the amendment and needs to be discarded. However, the court is unlikely to do that anytime soon, which means either the courts will slowly chip away at the third-party doctrine or perhaps Congress will act to strengthen statutory requirements. Only time will tell.

Ashley Baker is the director of public policy at the Committee for Justice, a nonprofit group that seeks to uphold the Constitution and support constitutionalist judges.