Law & the Courts

Brett Kavanaugh and the Supreme Court’s Fourth Amendment Mess

Privacy protections should mostly be left to legislatures.

In its closing act for 2018, the U.S. Supreme Court tried to resolve an issue that is bound to tie us in knots for the next half-century: How do we protect privacy in the face of the new electronic technologies? In Carpenter v. United States the Court held, by a 5–4 vote, that police need a warrant to obtain cell-phone-generated location information from phone-service providers.

For law enforcement this is a big loss. It means that investigations using cell-phone technology are going to be severely limited — though how limited is anyone’s guess at this point. And for privacy, the win is uncertain. Not only is Fourth Amendment law now muddled, but since the amendment limits intrusions only by agents of government, there is no impact at all on the biggest threats to privacy — from Google, Amazon, Facebook, and a host of other private companies.

How would Brett Kavanaugh, President Trump’s nominee to the Supreme Court, fit into this scenario? Hard to say. As a member of the federal D.C. Circuit he mainly dealt with administrative-law issues generated by government agencies, not Fourth Amendment cases involving street criminals. And when he did resolve Fourth Amendment issues, he had to pretty much follow Supreme Court precedent, not strike out on his own. Still, Kavanaugh, like all federal appeals-court judges, found subtle ways to express his views, and this gives us some insight into his forthcoming Supreme Court performance.

We can tease out some of Kavanaugh’s views on the Fourth Amendment from two cases in which he expressed positions different from those of his fellow jurists. In one, United States v. Jones (2010) — in which police had attached a GPS tracker to a man’s car and monitored the vehicle for four weeks — Kavanaugh repudiated an expansion of Fourth Amendment protection suggested by his colleagues, namely that the law should be more protective when the government engages in long-term data gathering. Precedent supported his position at the time, but the fact that he took pains to reject a time limit on police surveillance is telling.

Less meaningful, perhaps, is that Kavanaugh alone raised a privacy issue in Jones that the Supreme Court took up two years later. He unsuccessfully urged his appeals-court colleagues to decide whether merely affixing a GPS device to a car, as opposed to actually tracking the vehicle, violated the Fourth Amendment and therefore required a warrant. When the case made it to the nation’s highest court, Justice Antonin Scalia relied on this very idea in his majority opinion. Since Kavanaugh did not express any opinion as to how the issue should be resolved, however, this incident is more a tribute to his appellate-court skills than a predictor of his Fourth Amendment views.

A second Kavanaugh opinion, in Klayman v. Obama (2015), involved the National Security Agency’s controversial “metadata” collection — the massive gathering of dialed numbers along with the time and length of calls (but notably, not the content of the phone conversations). Kavanaugh aligned with his fellow jurists, who denied a requested rehearing of the case, but once again he went out of his way to carve out an independent position.

Part of his stance — that data obtained from a third party, such as a telecommunications provider, is not entitled to Fourth Amendment protection — was settled law at the time. (More on this in a bit.) However, Kavanaugh offered a second observation in Klayman — a more aggressive pro-law-enforcement position that may be more revealing of his deep-seated Fourth Amendment views. Even if the Fourth Amendment did apply to phone-data acquisition, he argued, investigators wouldn’t need advance judicial approval (a warrant) where the data collection was for national-security purposes. Relying on another Fourth Amendment rule with imprecise boundaries, the so-called “special needs” doctrine, Kavanaugh reasoned that the “special need” of protecting against terrorist attack outweighed the privacy concerns. This was especially true, he thought, because the government hadn’t eavesdropped on conversations, minimizing the invasion of privacy.

At first blush the Carpenter ruling seems inconsistent with Kavanaugh’s position on this issue, as it applied Fourth Amendment protections even though there was no interception of conversations. On the other hand, the government’s interests were not nearly as strong in Carpenter, since ordinary law enforcement, not national-security interests, was involved. Whether Kavanaugh would push for an expansive special-needs doctrine (and concomitantly a weaker Fourth Amendment) in typical law-enforcement cases is unclear. It could be that national security is his real soft spot.

In short, Kavanaugh’s views on long-term surveillance and non-conversational eavesdropping suggest that he will not be one to expand Fourth Amendment protections. In the NSA case he urged a legislative and executive solution rather than a judicial one — a position similar to Justice Samuel Alito’s sensible views in Carpenter, but one unlikely to win ACLU applause.

SCOTUS at a Crossroads

Turning to the details of the Carpenter decision, the facts illustrate the hardship it will create for police — and the difficulties it will create for future courts.

Over a four-month period Timothy Carpenter organized bands of robbers that held up nine Radio Shack and T-Mobile stores in Michigan and Ohio. Following initial arrests, one of the suspects gave police the names and cell-phone numbers of 15 accomplices, including Carpenter. Prosecutors then went to a federal magistrate to obtain records of Carpenter’s location from his cell-phone provider so they could match up his whereabouts with the dates, times, and locations of the robberies.

Congress had created a law just for this purpose, the Stored Communications Act. In accordance with this law the prosecutors had to present “reasonable grounds to believe” that the records they sought were “relevant and material to an ongoing criminal investigation.” This would win them a subpoena — a court order directing the possessor of documents to produce them. They did not need a warrant, which requires a showing of “probable cause” and is executed by government agents.

Why would Congress think this? Because the Supreme Court had more or less explicitly said so, in cases dating back to the 1970s.

The records involved are known as cell-site location information (CSLI). Your smartphone is continually seeking the nearest cell-phone antenna. Every time it connects to one it generates a time-stamped record that is collected and stored by the wireless carrier for various business purposes. The CSLI provides the location of the phone, but it is only an approximate location, since the antenna’s signal can extend for miles. Nevertheless, it’s easy to see how this information could help the police catch someone whose phone just happened to be located in the area of multiple robberies — four of them in Carpenter’s case. In fact, according to the prosecutors, the data seemed to have clinched the case. Carpenter was convicted of federal robbery and gun crimes and sentenced to 100 years in prison.

It’s crucial to understand why the Stored Communications Act didn’t require a warrant. Congress didn’t think the Fourth Amendment applied to this situation because the phone records don’t belong to the phone user; they belong to the wireless company. The phone user (so Congress believed) has no privacy interest in these records: He didn’t create them, possess them, use them, or store them. Had the police sought to examine the contents of Carpenter’s phone, it would have been a different story, since the content on a phone is simply a modern version of the “papers and effects” protected by the very words of the Fourth Amendment. But for information generated by a cell phone and stored by the phone company, Congress thought a mere subpoena sufficed.

Why would Congress think this? Because the Supreme Court had more or less explicitly said so, in cases dating back to the 1970s.

The Fourth Amendment says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Until the 1960s the Supreme Court interpreted these words to protect only the property listed in the provision: persons, houses, papers, and effects. But in a landmark 1967 case, Katz v. United States, involving the electronic recording of a phone conversation, the Court expanded the protection to activities for which there is a “reasonable expectation of privacy.”

This standard was nebulous; it empowered the courts to determine which activities were protected and which not. And in doing so, the Supreme Court carved out exceptions for certain data that — while many people would consider them private — were created and kept by a third party for business purposes. In United States v. Miller (1976), the Court ruled that bank records containing sensitive information are not protected by the Fourth Amendment — meaning that investigators looking for criminal money laundering, for instance, can subpoena the records of every deposit the target ever made to a bank for years.

A second case, Smith v. Maryland (1979), held that investigators’ use of a device that recorded the outgoing phone numbers dialed on a landline phone was not a search in the Fourth Amendment sense, either. The Court “doubted that people in general entertain any actual expectation of privacy in the numbers they dial,” and found that in any event, such an expectation “is not one that society is prepared to recognize as reasonable.”

Given the rationales of Miller and Smith, relied on repeatedly in countless lower-court cases, the Carpenter outcome seemed a foregone conclusion. The location information was created by MetroPCS and Sprint, not Carpenter, and it was the corporate records that were searched. In fact, there wasn’t even a search, just an order to surrender the data. And the information collected was akin to that at issue in Smith: basic data about the calls, not the actual content of the conversations. The lower courts so ruled, and the federal appeals court for the Sixth Circuit affirmed.

But Chief Justice John Roberts joined the four left-oriented justices to reverse the Sixth Circuit and set the Court on a new path. Since Smith and Miller weren’t overturned, the judiciary will have to reconcile the Carpenter decision with the four-decade-old cases. But how? Justice Roberts didn’t offer a lot of guidance. He wrote:

In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.

It isn’t easy to see why these same words shouldn’t apply to an individual’s banking or credit-card records, at issue in the earlier cases. Does the location of someone’s cell phone when he makes or receives calls really probe more deeply, broadly, or comprehensively into his life than does a record of all of his credit-card purchases? Or decades of bank deposits and withdrawals? As retiring Justice Anthony Kennedy observed in dissent, “the troves of intimate information the Government can and does obtain using financial records and telephone records dwarfs what can be gathered from cell-site records.”

In addition to the problem of reconciling Carpenter with earlier decisions, there is the question of other forms of electronic surveillance. For instance, what about GPS monitoring, the technology for which is installed in cars as well as smartphones? Will police need a warrant to intercept those data (as opposed to physically installing a GPS device themselves, as in Jones)? In a 1983 case, United States v. Knotts, the Supreme Court said that there is no expectation of privacy for a person traveling in an automobile on public thoroughfares, and yet Carpenter points to an application of the Fourth Amendment to automobile-location monitoring just as with cell-phone-location monitoring — especially in places where driving is the norm and surveillance of driving patterns would be considered as intrusive as cell-phone surveillance.

And will the Fourth Amendment be applied to RFID, or Radio Frequency Identification, which emits signals from key fobs, identification cards, passports, and even some of the clothing we wear? What about cell-site simulators, which enable users, including law enforcement, to gather information from cell phones directly, thus bypassing the need to obtain records from phone companies? With cell-site simulators, which masquerade as cell towers, police could monitor an entire area or track particular phones, and potentially access voice, text, and other communications.

Then there are technologies we can expect to be developed in the future, not to mention technologies we haven’t even dreamed of yet.

Legislate, Don’t Constitutionalize

Carpenter v. United States may have dragged the Fourth Amendment into the 21st century, but it probably will be decades before the courts clarify the law. In my view this is a good reason to leave regulation in this area to the state legislatures and Congress and the appropriate administrative agencies. They can easily modify the law to suit the circumstances, and they are in a better position to weigh privacy interests and law-enforcement needs. Recall that Judge Kavanaugh made a similar point in the NSA case. Once the courts constitutionalize an issue, it will take a Supreme Court majority to undo it, but the Court is loath to rapidly or frequently overturn precedent (which probably explains why Miller and Smith are still standing).

Justice Samuel Alito, dissenting in Carpenter, hit the nail on the head:

Legislation is much preferable to the development of an entirely new body of Fourth Amendment caselaw for many reasons, including the enormous complexity of the subject, the need to respond to rapidly changing technology, and the Fourth Amendment’s limited scope. The Fourth Amendment restricts the conduct of the Federal Government and the States; it does not apply to private actors. But today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.

As if to prove the point, California just passed a sweeping Internet-privacy law that applies to the private sector. The law, which is effective in 2020 but can readily be amended, broadens the definition of personal information and gives California consumers the right to prohibit the sale of personal data to third parties or opt out of sharing it altogether.

This law and any future legislation aimed at government data gathering will, I predict, do a much better job of protecting us from snoops as well as criminals than will the constitutional edicts issued by the nine robed solons sitting in their D.C. palace. Can Justice Kavanaugh extricate the Court from its Fourth Amendment mess? One can only hope.

Barry Latzer is a professor emeritus at New York’s John Jay College of Criminal Justice and author of The Rise and Fall of Violent Crime in America. He is working on a new book titled “The Myth of Overpunishment.”

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