In Carpenter v. United States, Neil Gorsuch showed his independent streak.

Neil Gorsuch Showed His Independent Streak in Defending 21st-Century Digital Privacy

Neil Gorsuch Showed His Independent Streak in Defending 21st-Century Digital Privacy

The law, lawyers, and the court.
Nov. 30 2017 2:52 PM

Neil Gorsuch’s Independent Streak

At arguments in Carpenter v. United States, the conservative justice used originalist principles to defend 21st-century digital privacy.

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Supreme Court Justice Neil Gorsuch on the steps of the Supreme Court following his official investiture at the court on June 15 in Washington.

Win McNamee/Getty Images

A funny thing happened midway through arguments in Carpenter v. United States: Justice Neil Gorsuch came out swinging for the American Civil Liberties Union.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Few expected Gorsuch, a rock-ribbed conservative, to side with digital privacy advocates in Carpenter, a hugely consequential Fourth Amendment case. But at the Supreme Court on Wednesday, the justice appeared eager to apply originalist principles to contemporary technology in a way that shields cellphone users from law enforcement overreach. Indeed, Gorsuch seems poised to build upon the jurisprudence of his predecessor, Justice Antonin Scalia, to establish real constitutional limits on the government’s ability to track our movements through our mobile devices.

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Carpenter poses a simple yet momentous question: Under the Fourth Amendment, must the government obtain a warrant to access cell site location information? Law enforcement can use this information to track a cellphone customer’s every move over an indefinite period of time. The ACLU argues that government accessing these records without a warrant constitutes an unreasonable search and seizure under the Fourth Amendment. But the government argues that, because customers voluntarily turn over the data to a third party—their cellphone companies—they have no right to privacy with regards to that information.

The fight in Carpenter has mostly revolved around the reasonable expectation of privacy, and whether it applies to cell site location information. But Gorsuch evinced little interest in this debate. Instead, he posed a very different question to ACLU attorney Nathan Wessler. “Focusing on the property-based approach,” the justice said, “putting aside reasonable expectation for just a moment, what do we know about what state law would say about this information? Say a thief broke into T-Mobile, stole this information and sought to make economic value of it. Would your client have a conversion claim, for example, under state law?”

“Conversion” is a civil claim that applies when you interfere with someone else’s personal property. Wessler, whose time was nearly up, struggled to answer. But Gorsuch posed the same hypothetical to Deputy Solicitor General Michael Dreeben, asking why that wouldn’t constitute “a search of my ‘paper’ or ‘effect’ under the property-based approach.” The justice added that federal law considers cell site location information to be “customer proprietary network information”—that is, the customer’s property. In light of that “property interest,” he asked Dreeben, isn’t government scrutiny of the data “a search of my ‘paper’ and ‘effect’ ”?

To understand the theory that Gorsuch is proposing here, it’s important to remember that the Supreme Court has two theories of the Fourth Amendment, one privacy based, one property based. The amendment clearly focuses on property, protecting “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” And in 1928, the Supreme Court held that a police investigation should require a warrant only if the authorities trespass upon an individual’s property.

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But in 1967, the Supreme Court revised that doctrine in light of modern technology, concluding instead that “the Fourth Amendment protects people, not places,” and protects a more abstract “right to privacy.” In a test quickly adopted by the court, Justice John Marshall Harlan II declared that the constitutional right applies when an individual has a personal expectation of privacy that “society is prepared to recognize as ‘reasonable.’ ”

Scalia disliked this doctrinal revision, criticizing it as “subjective and unpredictable.” He was right: Under Harlan’s test, individuals may lose their Fourth Amendment rights as technology erodes society’s perception of what privacy entails. Scalia spent much of his tenure attempting to revive the property-based approach, asserting that law enforcement must get a warrant whenever it commits a trespass with the intent to obtain information. He wrote, for instance, a majority opinion holding that the government must get a warrant before putting a GPS tracker on a car, because the action itself constitutes a trespass. For the same reason, he held in a landmark 5–4 decision that the police must get a warrant before bringing a drug-sniffing dog into a suspect’s yard.

Gorsuch is keen to advance Scalia’s crusade by applying it to the digital age. In retrospect, we should’ve seen it coming. While serving on the 10th U.S. Circuit Court of Appeals, Gorsuch wrote an opinion holding that the government committed a Fourth Amendment “search” by opening an individual’s email. He compared the action to “trespass to chattels”—which, like conversion, involves interference with another person’s property, including “private correspondence.”

“Of course, the framers were concerned with the protection of physical rather than virtual correspondence,” Gorsuch wrote. “But a more obvious analogy from principle to new technology is hard to imagine.”

In Carpenter, Gorsuch seems prepared to extend this “principle” to yet another “new technology”—the location data that our cellphones are constantly providing to third parties. (Several liberal justices, including Sonia Sotomayor, indicated agreement with his premise, suggesting his view may gain majority support.) To Gorsuch, this data is plainly our property, akin to the “papers” and “effects” of the founding era. Federal law identifies it as a customer’s “proprietary” information, and it can be analogized to personal possessions under long-standing rules of civil liability. Thus, it doesn’t actually matter whether customers expect their cell site location information to remain private. When the government scrutinizes the data, it is “trespassing” upon our property and must acquire a warrant under the Fourth Amendment.

Gorsuch’s theory elegantly bridges an ancient conception of property rights with the realities of contemporary life. The justice may finally be displaying a genuine independent streak, breaking away from the reactionary dogma that defined his early months on the bench. Like Scalia, Gorsuch wants to maintain the Fourth Amendment’s force at a time when technology threatens to undermine our expectations of privacy. If he succeeds, the justice will prove that his brand of originalism really can provide robust protection for civil rights today.

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