A Supreme Court ruling protects us from government surveillance but should have gone even farther.
A Supreme Court ruling protects us from government surveillance but should have gone even farther.
I magine if, as a condition of your citizenship, you were assigned a three-inch-tall police officer that you had to carry with you at all times. That tiny trooper would be able to monitor your exact location, listen in on your conversations, and see what you were searching for online. (Come to think of it, I may have just written myself a million-dollar check: This fall on CBS, Pocket Cop.)
Absurd? Yes. But no less absurd than the system currently in place, where virtually every American carries around a mobile phone that constantly collects data on his or her comings and goings. That data is typically stored on remote servers owned by large technology companies, so even if the mobile device were erased, a historical record of all the user’s activities lives on.
And whom does that data belong to? The user or the tech company? Can police request it whenever they want, or is it subject to Fourth Amendment protections against unreasonable search and seizure?
This was the question in Chatrie v. United States, in which the Supreme Court ruled this week that, even when data is stored remotely, it may be subject to Fourth Amendment protections. So if law enforcement wants to see where I’ve been based on my phone’s location data, it is usually going to need a proper warrant.
The case involved Okello Chatrie, a man from Midlothian, Va., who was arrested for robbing a bank after police were granted a “geofence warrant,” allowing them access to Google’s location data on the night of the heist. After throwing a wide net over Google’s records containing location histories of hundreds of millions of users, the cops caught the fish they were looking for in Chatrie. The government argued that it didn’t even need a warrant to search the records. The Court disagreed.
The Court declined to rubber-stamp what police had been doing: issuing geofence warrants to Google that effectively compelled the tech company to search through the location histories of every one of its users to determine which ones were present in the vicinity of a bank robbery. This is precisely the sort of dragnet the Fourth Amendment was designed to prevent.
In her majority decision, Justice Elena Kagan used a half-century-old test to declare the cops’ snooping through Google data to be improper.
“An individual has a reasonable expectation of privacy in records about his cell phone’s location,” wrote Kagan, “and police intrude on that constitutionally protected interest when they demand the information — even though for only a limited time, and from a third-party tech company.” It’s a sensible ruling grounded in practical reality: your location history is undoubtedly revealing information about you, and the fact that Google happens to be storing it shouldn’t diminish your constitutional protection of it.
On its face, this is a victory. But Justice Neil Gorsuch’s sidecar concurrence, in which he reached the same conclusion as Kagan’s but through different legal reasoning, is the opinion worth celebrating — and it’s the next logical step the Court regrettably failed to take. Gorsuch argued that location data qualifies as personal property under the Fourth Amendment’s protection of “effects.” Gorsuch noted that “entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours.” Your neighbor wants to borrow your lawn mower? You don’t relinquish it forever — it still belongs to you.
In other words, the Fourth Amendment should protect electronic travel records as it has always protected traditional diaries and records.
This is the right way to think about it. Not because Gorsuch is fashioning some newfangled theory of privacy (he’s not), but because he’s anchoring constitutional protection in something more fundamental and durable: property rights. Your data is yours. It belongs to you in the same way your diary belongs to you, or your checkbook, or the contents of your safe-deposit box. The government can’t rummage through those things without a warrant — and it shouldn’t be able to rummage through the digital equivalent either.
The property-rights framework has the additional advantage of being less susceptible to technological obsolescence. “Reasonable expectations of privacy” are notoriously slippery concepts in the digital age. Technology moves faster than constitutional doctrine, meaning courts are perpetually playing catch-up with innovations that make yesterday’s privacy expectations quaint. But property rights don’t change when the substrate changes. If you own your data, you own it whether it’s stored on a hard drive in your closet or in some server farm in Mountain View, Calif.
You may be asking, Don’t police officers do surveillance all the time? As Kagan notes, poking through phone-location data constitutes a form of government intrusion that’s qualitatively different from traditional law enforcement surveillance because of three crucial factors.
First, the precision and comprehensiveness of the data are incomparable. Unlike officers following a suspect on foot or even GPS devices tracking a vehicle, location-history data provides a continuous, granular record of a person’s movements — pinpointing his location within 20 meters every two minutes, 720 times per day, and even revealing which floor of a building he’s on.
Second, this surveillance operates on an unprecedented scale and temporal dimension. Police officers in prior eras “simply could not” conduct the kind of tireless, retrospective surveillance that digital-location data enables: they can now reconstruct anyone’s movements at the “click of a button,” writes Kagan, and monitor multiple people across multiple locations simultaneously, with no advance decision about whom to investigate.
Finally, unlike traditional tailing or GPS monitoring that at least required some up-front investigative decision, location-data surveillance enables what Kagan calls “a virtual panopticon” where authorities can select which hours, days, or individuals to scrutinize after the fact, transforming what was once unknowable into comprehensive, permanent records of the most intimate aspects of citizens’ lives — their visits to doctors’ offices, places of worship, political rallies, and homes.
And location data can tell a lot more than just where someone happened to be at a certain time — as Kagan notes, quoting United States v. Jones, “Even short-term monitoring” can provide “a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.”
Further, as Fourth Amendment attorney Amy Peikoff has noted, when the government orders service providers to conduct “reverse searches” of its records, the service providers aren’t simply searching the records of a single individual; when the government fails to get a proper warrant, they are compelling a service provider to breach the contract it has with every user affected by the dragnet. “That’s not something to be ‘balanced’ against law enforcement convenience,” she wrote. “It’s a trespass.”
Gorsuch’s reasoning is the type of originalism at which he excels — not because he’s performing textual gymnastics to reach a predetermined outcome, but because he’s actually paying attention to the principles that undergird the Constitution. The Founders were obsessed with property rights. Property was understood as the bulwark against tyranny, the thing that gave individuals economic and political independence from the state. It makes perfect sense that they would protect not just physical property but the records and information that constitute your personal domain, even when those records are shared with service providers.
As more of our lives become subject to digital tracking, more rules will be needed to protect us from constant surveillance by pocket cops. Courts need to understand that carrying a tracking device that reports our every movement to corporate servers is not just a ubiquitous feature of modern life. In the absence of proper legal protection for our papers and effects, it is a profound shift in the balance between individual liberty and state power.
And bank robbers should probably understand that it’s not a great idea to bring their cellphone on a heist.