Defending the Fourth Amendment, Gorsuch’s Constitutional Case

[Image Source: Getty/Drew Angerer]

In the landmark Carpenter v. United States case on the privacy of historical cell phone location records, the Supreme Court ruled in favour of requiring government needing a warrant to collect such data. Surprisingly for some, the liberal Justices on the court, joined by Chief Justice Roberts, authored the majority opinion.

Prior to this case, government entities did not require a warrant to access such cell phone location records – instead merely a claim that the information was needed for an investigation was sufficient.

Chief Justice John G. Roberts Jr., writing for the majority opinion, said the following:

“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”

While the case is no doubt a win for individual liberty, and curtailing the reach of government, the case does not actually fundamentally address the decades of rulings on the interpretation and function of the Fourth Amendment that the courts’ inevitably have deferred to.

Justice Gorsuch, though unexpectedly dissenting from the majority opinion, writes brilliantly on why he did so. The result of the ruling is clearly what he believes is right and just, as is made evident in what seems to be a opinion largely agreeing with the majority opinion. However, instead of what was a very narrow ruling – largely not upsetting previous legal precedent – Gorsuch lays out his case for returning to a traditionalist reading of what is written in the Constitution.

Previously, legal precedent and doctrine has offered little to no expectation of privacy for information such as phone records and bank statements, as was the case in Smith v. Maryland. The court ruled that the ‘use’ of a dialled number register was not a ‘search’ under the Fourth Amendment as, by ‘voluntarily sharing’ this information with the telephone company, the user in this case no longer had a ‘reasonable expectation of privacy’. This, along with the earlier but similar case United States v. Miller, saw the establishment of what was to become known as ‘Third-Party doctrine’.

Third-Party doctrine, built upon the precedent of Smith and Miller, essentially established that once you had voluntarily disclosed information to a third-party, such as a telecom or bank, you no longer had a ‘reasonable expectation of privacy’, and therefore, in the event of government agencies seeking such information, is not subject to the Fourth Amendment. In other words, the government doesn’t need a warrant to obtain it. The Court explained as follows in its opinion on Miller:

“…the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

With the amount of quotation marks in the past two paragraphs around ‘reasonable expectation of privacy’, the astute legal minds amongst you might have realised that you don’t recall such a phrase in the Fourth Amendment. Indeed the Fourth Amendment to the Constitution of the United States reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It, very noticeably, makes no mention of a ‘reasonable expectation of privacy’. In fact, the ‘reasonable expectation of privacy’ test for triggering the Fourth Amendment wasn’t legal theory or practice until Katz v. United States in the late 1960s.

Justice Gorsuch argues that, not only is the test vague, to the extent that what a ‘reasonable expectation of privacy’ even is isn’t necessarily defined – is it empirical or is it normative (what expectation do they actually have or they should have) – but also that, and very rightly in my opinion, acknowledges that it is better the role of the legislature to define those boundaries.

In addition, with Smith and Miller as examples of the fault in the Katz-test (and Gorsuch provides many more examples of the unbelievable decisions made upon its precedent), and Third-Party doctrine thus firmly set in the courts, Gorsuch suggests the implication that any information we share with a third party in this day and age should be regarded as forfeit of any expectation of privacy is ridiculous.

So if neither Smith and Miller nor returning to Katz offers an answer to the difficult question of the Fourth Amendment in our modern age, what does? Justice Gorsuch offers a brilliant answer – returning to the Constitution.

From the penning of the Fourth Amendment, until Katz, its application didn’t rely upon an abstract ‘reasonableness’ test. Instead, it reads very clearly, that as long as that the persons, houses, papers etc. were yours, they were protected under the Fourth Amendment. No more, no less. Gorsuch writes:

“…under this more traditional approach, Fourth Amendment protection for your papers and effects do not automatically disappear just because you share them with third parties.”

This is abundantly clear. If it is yours, you enjoy the Fourth Amendment protection for it. The question then becomes, what is yours – and how would such a test be better than our current legal doctrine?

Gorsuch makes three main points regarding this;

Firstly, ‘just because a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them’. He provides a solid analysis of the idea of bailment, and how it is largely analogous to, say, sending a message through social media. By sending a message through a social media service, and therefore bailing the information to a third party, the protections afforded by the Fourth Amendment should not diminished.

Secondly, Gorsuch doubts that ‘complete ownership’ or ‘exclusive control’ of property is necessary to evoke the Fourth Amendment. He again makes strong analysis regarding that even a boarder or servant, having no legal title to the homes in which they live, are able to assert their Fourth Amendment right against searches of the houses in which they live.

Thirdly, he recognises such a test would defer more to positive law to guide its judgement, rather than judicial intuition. Gorsuch continues to advocate for separation of powers, and against judicial activism.

While he provides two more arguments, the first three are perhaps the most relevant, and poignant arguments he presents. Cutting through decades of insubstantial rulings that continued to chip away at our civil liberties, Gorsuch presents an astoundingly clear, and constitutionally reverent solution. He has proven again, in what seemed initially as a uncharacteristic decision, that he is one of the most brilliant legal minds in this country, and a continued advocate for the Constitution and the foundation upon which these United States are built upon.

Read his dissenting opinion here (pg. 99).

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