Fourth Amendment: Expectation of Privacy or Property Rights?

At the end of November, the Supreme Court heard oral arguments in Carpenter v. United States, a Fourth Amendment case presenting the question whether the government can obtain months of cell tower records revealing the location and movements of a customer without a warrant.  That kind of information placed Carpenter near the scene of some robberies and helped convict him of aiding and abetting.

The government argued it did not need a warrant because of the “third-party doctrine”.  Under this doctrine, the Fourth Amendment does not apply because the records were considered ‘voluntarily’ given to the phone company.  A prior case held that the government can get your bank records without a warrant because, a) the records belong to the bank, not you; and b) you are deemed to have no expectation of privacy in those records.  [U.S. v. Miller, 1976]  Because of the third-party doctrine, the lower appellate court in the Carpenter case ruled the defendant could not reasonably have expected that the phone company would keep his cellphone records private.  Accordingly, the government could obtain his records without a warrant, that court ruled.

During Supreme Court arguments, however, Justice Kagan wanted to know how this case was different from United States v. Jones, a 2012 case holding that the government cannot put GPS devices on people’s cars and track them for a month without a warrant.  She wanted to know how warrantless 24/7 tracking by GPS is different from warrantless 24/7 tracking using cell tower data.  Justice Sotomayor elaborated on this, saying it’s a fundamental concept that Big Brother should not be able to pinpoint your location any time it wants without probable cause and a warrant.  People invest a lot of themselves in their cellphones now and the law needs to protect their new expectations of privacy, these justices were essentially saying.

Justice Gorsuch, on the other hand, took a property rights approach to the Fourth Amendment.  He cited a federal statute that imposes a duty on phone companies to keep customer data confidential.  This is enough to create a property interest in the data, he said, so the government cannot seize the customer’s property without a warrant any more than it could invade someone’s property to put a GPS device on it without probable cause.  [More on the property rights rationale here.]

So here we have two different theories of the Fourth Amendment - the ‘expectation of privacy’ theory and the property rights rationale.  Property rights is in the ascendancy and actually got five votes in the earlier Jones case while four justices got to the same result on expectation of privacy.  But expectation of privacy has been the mainstay of Fourth Amendment jurisprudence for decades and was the theory under which the Supreme Court required the government to get a warrant before searching actual cellphones in the 2014 Riley v. California case. 

The two theories won’t always lead to the same result.  For now, both theories are available to criminal defendants.  The upcoming decision in the Carpenter case will tell us whether the Supreme Court is willing to run further with the property rights theory, or will pull back and rely on the previously dominant expectation of privacy rationale, instead.
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