A Republic, If You Can Keep It

by Neil Gorsuch

  So can the government demand a copy of all your e-mails from Google or Microsoft without implicating your Fourth Amendment rights? Can it secure your DNA from 23andMe without a warrant or probable cause? Smith and Miller say yes it can—at least without running afoul of Katz. But that result strikes most lawyers and judges today—me included—as pretty unlikely. In the years since its adoption, countless scholars, too, have come to conclude that the “third-party doctrine is not only wrong, but horribly wrong.” The reasons are obvious. “As an empirical statement about subjective expectations of privacy,” the doctrine is “quite dubious.” People often do reasonably expect that information they entrust to third parties, especially information subject to confidentiality agreements, will be kept private. Meanwhile, if the third party doctrine is supposed to represent a normative assessment of when a person should expect privacy, the notion that the answer might be “never” seems a pretty unattractive societal prescription.

  What, then, is the explanation for our third party doctrine? The truth is, the Court has never offered a persuasive justification. The Court has said that by conveying information to a third party you “ ‘assum[e] the risk’ ” it will be revealed to the police and therefore lack a reasonable expectation of privacy in it. But assumption of risk doctrine developed in tort law. It generally applies when “by contract or otherwise [one] expressly agrees to accept a risk of harm” or impliedly does so by “manifest[ing] his willingness to accept” that risk and thereby “take[s] his chances as to harm which may result from it.” That rationale has little play in this context. Suppose I entrust a friend with a letter and he promises to keep it secret until he delivers it to an intended recipient. In what sense have I agreed to bear the risk that he will turn around, break his promise, and spill its contents to someone else? More confusing still, what have I done to “manifest my willingness to accept” the risk that the government will pry the document from my friend and read it without his consent?

  One possible answer concerns knowledge. I know that my friend might break his promise, or that the government might have some reason to search the papers in his possession. But knowing about a risk doesn’t mean you assume responsibility for it. Whenever you walk down the sidewalk you know a car may negligently or recklessly veer off and hit you, but that hardly means you accept the consequences and absolve the driver of any damage he may do to you.

  Some have suggested the third party doctrine is better understood to rest on consent than assumption of risk. “So long as a person knows that they are disclosing information to a third party,” the argument goes, “their choice to do so is voluntary and the consent valid.” I confess I still don’t see it. Consenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government. Perhaps there are exceptions, like when the third party is an undercover government agent. But otherwise this conception of consent appears to be just assumption of risk relabeled—you’ve “consented” to whatever risks are foreseeable.

  Another justification sometimes offered for third party doctrine is clarity. You (and the police) know exactly how much protection you have in information confided to others: none. As rules go, “the king always wins” is admirably clear. But the opposite rule would be clear too: Third party disclosures never diminish Fourth Amendment protection (call it “the king always loses”). So clarity alone cannot justify the third party doctrine. In the end, what do Smith and Miller add up to? A doubtful application of Katz that lets the government search almost whatever it wants whenever it wants. The court of appeals had to follow that rule and faithfully did just that, but it’s not clear why we should.

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  THERE’S A SECOND OPTION. What if we dropped Smith and Miller’s third party doctrine and retreated to the root Katz question whether there is a “reasonable expectation of privacy” in data held by third parties? Rather than solve the problem with the third party doctrine, I worry this option only risks returning us to its source: After all, it was Katz that produced Smith and Miller in the first place.

  Katz’s problems start with the text and original understanding of the Fourth Amendment. The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.

  History too holds problems for Katz. Little like it can be found in the law that led to the adoption of the Fourth Amendment or in this Court’s jurisprudence until the late 1960s. The Fourth Amendment came about in response to a trio of 18th century cases “well known to the men who wrote and ratified the Bill of Rights, [and] famous throughout the colonial population.” The first two were English cases invalidating the Crown’s use of general warrants to enter homes and search papers. The third was American: the Boston Writs of Assistance Case, which sparked colonial outrage at the use of writs permitting government agents to enter houses and business, breaking open doors and chests along the way, to conduct searches and seizures—and to force third parties to help them. No doubt the colonial outrage engendered by these cases rested in part on the government’s intrusion upon privacy. But the framers chose not to protect privacy in some ethereal way dependent on judicial intuitions. They chose instead to protect privacy in particular places and things—“persons, houses, papers, and effects”—and against particular threats—“unreasonable” governmental “searches and seizures.”

  Even taken on its own terms, Katz has never been sufficiently justified. In fact, we still don’t even know what its “reasonable expectation of privacy” test is. Is it supposed to pose an empirical question (what privacy expectations do people actually have) or a normative one (what expectations should they have)? Either way brings problems. If the test is supposed to be an empirical one, it’s unclear why judges rather than legislators should conduct it. Legislators are responsive to their constituents and have institutional resources designed to help them discern and enact majoritarian preferences. Politically insulated judges come armed with only the attorneys’ briefs, a few law clerks, and their own idiosyncratic experiences. They are hardly the representative group you’d expect (or want) to be making empirical judgments for hundreds of millions of people. Unsurprisingly, too, judicial judgments often fail to reflect public views. Consider just one example. Our cases insist that the seriousness of the offense being investigated does not reduce Fourth Amendment protection. Yet scholars suggest that most people are more tolerant of police intrusions when they investigate more serious crimes. And I very much doubt that this Court would be willing to adjust its Katz cases to reflect these findings even if it believed them.

  Maybe, then, the Katz test should be conceived as a normative question. But if that’s the case, why (again) do judges, rather than legislators, get to determine whether society should be prepared to recognize an expectation of privacy as legitimate? Deciding what privacy interests should be recognized often calls for a pure policy choice, many times between incommensurable goods—between the value of privacy in a particular setting and society’s interest in combating crime. Answering questions like that calls for the exercise of raw political will belonging to legislatures, not the legal judgment proper to courts. When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resemblance to those expectations of privacy” shared by Members of this Court. We also risk undermining public confidence in the courts themse
lves.

  My concerns about Katz come with a caveat. Sometimes, I accept, judges may be able to discern and describe existing societal norms. That is particularly true when the judge looks to positive law rather than intuition for guidance on social norms. So there may be some occasions where Katz is capable of principled application—though it may simply wind up approximating the more traditional option I will discuss in a moment. Sometimes it may also be possible to apply Katz by analogizing from precedent when the line between an existing case and a new fact pattern is short and direct. But so far this Court has declined to tie itself to any significant restraints like these.

  As a result, Katz has yielded an often unpredictable—and sometimes unbelievable—jurisprudence. Smith and Miller are only two examples; there are many others. Take Florida v. Riley, which says that a police helicopter hovering 400 feet above a person’s property invades no reasonable expectation of privacy. Try that one out on your neighbors. Or California v. Greenwood, which holds that a person has no reasonable expectation of privacy in the garbage he puts out for collection. In that case, the Court said that the homeowners forfeited their privacy interests because “[i]t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” But the habits of raccoons don’t prove much about the habits of the country. I doubt, too, that most people spotting a neighbor rummaging through their garbage would think they lacked reasonable grounds to confront the rummager. Making the decision all the stranger, California state law expressly protected a homeowner’s property rights in discarded trash. Yet rather than defer to that as evidence of the people’s habits and reasonable expectations of privacy, the Court substituted its own curious judgment.

  Resorting to Katz in data privacy cases threatens more of the same. Just consider. The Court today says that judges should use Katz’s reasonable expectation of privacy test to decide what Fourth Amendment rights people have in cell-site location information, explaining that “no single rubric definitively resolves which expectations of privacy are entitled to protection.” But then it offers a twist. Lower courts should be sure to add two special principles to their Katz calculus: the need to avoid “arbitrary power” and the importance of “plac[ing] obstacles in the way of a too permeating police surveillance.” While surely laudable, these principles don’t offer lower courts much guidance. The Court does not tell us, for example, how far to carry either principle or how to weigh them against the legitimate needs of law enforcement. At what point does access to electronic data amount to “arbitrary” authority? When does police surveillance become “too permeating”? And what sort of “obstacles” should judges “place” in law enforcement’s path when it does? We simply do not know.

  The Court’s application of these principles supplies little more direction. The Court declines to say whether there is any sufficiently limited period of time “for which the Government may obtain an individual’s historical [location information] free from Fourth Amendment scrutiny.” But then it tells us that access to seven days’ worth of information does trigger Fourth Amendment scrutiny—even though here the carrier “produced only two days of records.” Why is the relevant fact the seven days of information the government asked for instead of the two days of information the government actually saw? Why seven days instead of ten or three or one? And in what possible sense did the government “search” five days’ worth of location information it was never even sent? We do not know.

  Later still, the Court adds that it can’t say whether the Fourth Amendment is triggered when the government collects “real-time cell-site location data or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval).” But what distinguishes historical data from real-time data, or seven days of a single person’s data from a download of everyone’s data over some indefinite period of time? Why isn’t a tower dump the paradigmatic example of “too permeating police surveillance” and a dangerous tool of “arbitrary” authority—the touchstones of the majority’s modified Katz analysis? On what possible basis could such mass data collection survive the Court’s test while collecting a single person’s data does not? Here again we are left to guess. At the same time, though, the Court offers some firm assurances. It tells us its decision does not “call into question conventional surveillance techniques and tools, such as security cameras.” That, however, just raises more questions for lower courts to sort out about what techniques qualify as “conventional” and why those techniques would be okay even if they lead to “permeating police surveillance” or “arbitrary police power.”

  Nor is this the end of it. After finding a reasonable expectation of privacy, the Court says there’s still more work to do. Courts must determine whether to “extend” Smith and Miller to the circumstances before them. So apparently Smith and Miller aren’t quite left for dead; they just no longer have the clear reach they once did. How do we measure their new reach? The Court says courts now must conduct a second Katz-like balancing inquiry, asking whether the fact of disclosure to a third party outweighs privacy interests in the “category of information” so disclosed. But how are lower courts supposed to weigh these radically different interests? Or assign values to different categories of information? All we know is that historical cell-site location information (for seven days, anyway) escapes Smith and Miller’s shorn grasp, while a lifetime of bank or phone records does not. As to any other kind of information, lower courts will have to stay tuned.

  In the end, our lower court colleagues are left with two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition. In the Court’s defense, though, we have arrived at this strange place not because the Court has misunderstood Katz. Far from it. We have arrived here because this is where Katz inevitably leads.

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  THERE IS ANOTHER WAY. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expectations of privacy. It was tied to the law. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz’s shadow, this traditional understanding persists. Katz only “supplements, rather than displaces the traditional property-based understanding of the Fourth Amendment.”

  Beyond its provenance in the text and original understanding of the Amendment, this traditional approach comes with other advantages. Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution. A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Nor is this approach hobbled by Smith and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.

  Given the prominence Katz has claimed in our doctrine, American courts are pretty rusty at applying the traditional approach to the Fourth Amendment. We know that if a house, paper, or effect is yours, you have a Fourth Amendment interest in its protection. But what kind of legal interest is s
ufficient to make something yours? And what source of law determines that? Current positive law? The common law at 1791, extended by analogy to modern times? Both? Much work is needed to revitalize this area and answer these questions. I do not begin to claim all the answers today, but (unlike with Katz) at least I have a pretty good idea what the questions are. And it seems to me a few things can be said.

  First, the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them. Ever hand a private document to a friend to be returned? Toss your keys to a valet at a restaurant? Ask your neighbor to look after your dog while you travel? You would not expect the friend to share the document with others; the valet to lend your car to his buddy; or the neighbor to put Fido up for adoption. Entrusting your stuff to others is a bailment. A bailment is the “delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose.” A bailee normally owes a legal duty to keep the item safe, according to the terms of the parties’ contract if they have one, and according to the “implication[s] from their conduct” if they don’t. A bailee who uses the item in a different way than he’s supposed to, or against the bailor’s instructions, is liable for conversion. This approach is quite different from Smith and Miller’s (counter)-intuitive approach to reasonable expectations of privacy; where those cases extinguish Fourth Amendment interests once records are given to a third party, property law may preserve them.