This is not how the protection of concretely described privacy interests is supposed to work.
This is not how the protection of concretely described privacy interests is supposed to work.
G overnment agents should be forbidden from intruding into a sphere of privacy, provided that (a) the person into whose life they seek to pry has tried to preserve as private whatever it is the agents want to examine, and — here’s the important part — (b) the person’s “expectation of privacy is one that society is prepared to recognize as reasonable” (emphasis added).
As a matter of policy, I doubt I could agree more with Justice Elena Kagan, who wrote those words for a sharply divided Supreme Court this week in Chatrie v. United States. Yet, if the ambit of our privacy from government snooping is to be set by what society is prepared to recognize, then I’d humbly propose that we ask, well, society, rather than Justice Kagan.
In America’s system of republican democracy, we don’t have a plebiscite when such policy questions arise. We have Congress.
Contrary to popular belief, House and Senate seats were not meant to be standing invitations for celebrity pols to squawk about the nation’s challenges on cable television and social media. Lawmakers are supposed to represent our society. That’s why we elect them. That’s the basis on which they are supposed to be accountable in the elections that follow. Their lawmaking is supposed to reflect what society thinks; best of all, if they are incompetent or corrupt in championing our best interests, we get to vote them out of office.
Justice Kagan, by contrast, would leave pronouncements on society’s expectations to nine lawyers on the Supreme Court, the top tier of the judicial branch of government that the Framers quite intentionally cordoned off from political accountability to society.
The courts were never supposed to assume this role. But they have. Consequently, Supreme Court jurisprudence does not simply measure the carapace safeguarding Americans in “their persons, houses, papers, and effects” from unreasonable government searches, as the Fourth Amendment puts it. Rather, the unelected justices, whose elite academic and governmental backgrounds tend not to be representative of broader society, treat us to a rolling constitutional convention, guided by their occasionally eccentric ideas about what privacy interests ought to be protected. Society gets no say, contrary to the Constitution’s terms for such conventions (see Article V).
Chatrie involves a modern problem. On May 19, 2019, a then-unidentified, armed man robbed $195,000 in cash from a Virginia credit union. Though investigators did not have a suspect, witness accounts and surveillance footage informed them that the robber had been using a cellphone and approached the credit union from a particular direction. Hence, they asked a court for what’s known as a “geofence” warrant.
Today’s telephone technology — specifically, its “location data” function — constantly tracks the places in which phones are carried, even if they aren’t being used. A “geofence,” then, is a virtual fence investigators draw around a location in which the crime occurred; the court warrant allows them to acquire data related to the resulting grid from service providers (here, Google). The data enable them to figure out which phone numbers, IP addresses, and the like were within the grid in the time shortly before, during, and shortly after the crime occurred. At first, the warrant directs that the agents get this data in anonymized form (i.e., the service provider does not identify the users). Combining that information with other facts their probe has uncovered, investigators winnow the user data down to a suspect or two. Only at that point — when other evidence makes it reasonable to suspect that these cellphone users are culpable — does the service provider identify those users. This allows the agents to dig deeper (by lawful investigative techniques) into the background and activities of the suspects and solve the crime.
It’s not enough to say that this seems eminently reasonable. The narrow Chatrie majority — which had qualms about it, based on the Court’s wayward privacy precedents — could not bring itself to say the geofence technique was necessarily unreasonable. That’s important because the Fourth Amendment forbids only unreasonable searches.
The justices nevertheless remanded the case back to the lower courts to sort that out. The question at the heart of this week’s decision was whether the geofence process constitutes the kind of government search to which Fourth Amendment applies at all — i.e., whether the judiciary, under the guise of “society,” gets to decide what’s reasonable. The narrow majority said the Fourth Amendment was indeed implicated — a conclusion in which Chief Justice John Roberts and Justice Brett Kavanaugh joined with Justice Kagan and her two fellow progressives, Justices Sonia Sotomayor and Ketanji Brown Jackson.
Hence, despite the patent reasonableness of the procedure, despite the pains taken by agents to avoid identifying innocent people who just happened to be in the vicinity of the robbery, and despite the agents’ obvious good faith in seeking a court warrant (which should mean the incriminating evidence is admissible even if there were a technical privacy violation), the lower courts will now have to reexamine the matter. They’ll be called on to determine whether the government provided the judge with enough evidence (probable cause); and whether the geofence warrant — notwithstanding its multi-step, mostly anonymized procedure, designed to protect privacy — is analogous to a nonspecific “general warrant,” the bane of American colonists that was the Framers’ rationale for the Fourth Amendment’s particularized warrant mandate.
This is not how the Fourth Amendment’s protection of concretely described privacy interests is supposed to work.
Okello Chatrie was not subjected to a search of his person, house, papers, or effects. To the contrary, investigators obtained information about his location from records kept by a third-party telecommunications provider. He knew — just as all of us cell phone users know — that he was constantly sharing information about his location with the telecom. (On this score, Justice Neil Gorsuch’s thoughtful concurring opinion rightly rejected the majority’s rootless “expectation of privacy” analysis, but he then strained to frame the location data — the telecom’s records — as if they were Chatrie’s personal “effects,” supposedly implicating the Fourth Amendment. Count me unpersuaded.)
Now, from the fact that the Fourth Amendment did not bar the geofence procedure, it doesn’t follow that Chatrie had no privacy interest that society would deem reasonable. After all, our mere awareness that our service providers track us doesn’t mean we’ve consented to make our every movement known to the world. Moreover, it is just a fact that location tracking is very difficult to disable: We carry our phones because we need them for various communication and information purposes; to be useful, the phone has to be on, and whenever it’s on, it’s pinging cell towers and Wi-Fi networks.
The thing is, in a properly functioning republic, the Constitution’s explicit private property interests, the ones expressly prescribed by the Fourth Amendment, would be only the minimum legally cognizable privacy — the beginning of our protection, not the full extent of it.
The Constitution doesn’t say the law may only safeguard one’s person, house, papers, or effects. It says that those are the fundamental privacy interests, such that government generally needs a court-authorized, probable-cause warrant before prying. We have countless other privacy interests — ever more as technology hedges on the “panopticon” feared by the Chatrie majority. These interests, however, are supposed to be protected by the political representatives accountable to the society whose privacy is at risk. By statute. It is the vital role of judges to apply those statutory protections, not to manufacture their own privacy standards based on their sensibilities about which of our expectations is reasonable.
In highlighting what the Court calls society’s expectations of privacy, the better to camouflage the reality that it is the justices’ expectations that the Court imposes, Justice Kagan (as Justice Gorsuch pointed out) quoted from the concurring opinion of a single justice — John Marshall Harlan — in the Court’s 1967 Katz v. United States ruling. That was a wiretapping case: Without a warrant, federal agents eavesdropped on the conversations of a bookie. He was convicted of illegally transmitting wagering information, but the Court reversed, concluding that the evidence had been obtained unlawfully.
There was no way to justify Katz under the Fourth Amendment as written and originally understood — i.e., as a protection against government trespass on the core private property the amendment specifies. But the Swingin’ Sixties Supreme Court manufactured a ground-shifting theory: Its sense of the amendment’s purpose — which it took to be to “protect[] people — and not simply ‘areas’” — must supersede what the amendment actually says. This newfangled concept — the Court’s unilateral amendment of the amendment — comes to us as “reasonable expectation of privacy,” in Justice Harlan’s phrasing.
It was, and is, a bad idea.
Reasonable expectations about what protected privacy should entail are always contingent. In a society’s ever-evolving landscape, technology is always advancing (facilitating both intrusions on privacy and new ways to protect privacy, such as encryption); police tactics are always being evaluated (hyper-aggressiveness after terrorist attacks, dormant in cities where progressive prosecutors prefer not to prosecute); and other scientific strides, however inadvertently, enable criminals and terrorists to magnify their malevolence in previously unimaginable ways.
It should be among the most vital tasks of the people’s representatives in Congress to weigh the competing imperatives of liberty and security, of privacy and effective law enforcement. Because this realm is dynamic, it calls uniquely for Congress’s capacity to do what courts can’t: summon witnesses, interview experts, gather evidence, hold hearings, and change the rules as common sense dictates in light of scientific advances, police conduct (or misconduct), and the threat environment. This is how we should learn what it is reasonable to expect — and how reasonable Americans do, in fact, expect their law enforcement agents to comport themselves.
This is not a task a court is fit for or apt to do well.
The Framers gave us Fourth Amendment protection for the rudiments of privacy, and a Congress answerable to the people to build strong privacy protections — statutory processes that allow for effective law enforcement as conditions change. The Supreme Court has supplanted that framework with an “expectation of privacy” scheme that has unaccountable judges making it up as they go along. As Chatrie shows, the justices try very hard to get it right. Still, in a constitutional republic, it’s not what you’d reasonably expect.