A Republic, If You Can Keep It

by Neil Gorsuch

  Our Fourth Amendment jurisprudence already reflects this truth. In Ex parte Jackson, this Court held that sealed letters placed in the mail are “as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.” The reason, drawn from the Fourth Amendment’s text, was that “[t]he constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” It did not matter that letters were bailed to a third party (the government, no less). The sender enjoyed the same Fourth Amendment protection as he does “when papers are subjected to search in one’s own household.”

  These ancient principles may help us address modern data cases too. Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents. Whatever may be left of Smith and Miller, few doubt that e-mail should be treated much like the traditional mail it has largely supplanted—as a bailment in which the owner retains a vital and protected legal interest.

  Second, I doubt that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple title. Both the text of the Amendment and the common law rule support that conclusion. “People call a house ‘their’ home when legal title is in the bank, when they rent it, and even when they merely occupy it rent free.” That rule derives from the common law. That is why tenants and resident family members—though they have no legal title—have standing to complain about searches of the houses in which they live.

  Another point seems equally true: just because you have to entrust a third party with your data doesn’t necessarily mean you should lose all Fourth Amendment protections in it. Not infrequently one person comes into possession of someone else’s property without the owner’s consent. Think of the finder of lost goods or the policeman who impounds a car. The law recognizes that the goods and the car still belong to their true owners, for “where a person comes into lawful possession of the personal property of another, even though there is no formal agreement between the property’s owner and its possessor, the possessor will become a constructive bailee when justice so requires.” At least some of this Court’s decisions have already suggested that use of technology is functionally compelled by the demands of modern life, and in that way the fact that we store data with third parties may amount to a sort of involuntary bailment too.

  Third, positive law may help provide detailed guidance on evolving technologies without resort to judicial intuition. State (or sometimes federal) law often creates rights in both tangible and intangible things. In the context of the Takings Clause we often ask whether those state-created rights are sufficient to make something someone’s property for constitutional purposes. A similar inquiry may be appropriate for the Fourth Amendment. Both the States and federal government are actively legislating in the area of third party data storage and the rights users enjoy.

  State courts are busy expounding common law property principles in this area as well. If state legislators or state courts say that a digital record has the attributes that normally make something property, that may supply a sounder basis for judicial decisionmaking than judicial guesswork about societal expectations.

  Fourth, while positive law may help establish a person’s Fourth Amendment interest there may be some circumstances where positive law cannot be used to defeat it. Ex parte Jackson reflects that understanding. There this Court said that “[n]o law of Congress” could authorize letter carriers “to invade the secrecy of letters.” So the post office couldn’t impose a regulation dictating that those mailing letters surrender all legal interests in them once they’re deposited in a mailbox. If that is right, Jackson suggests the existence of a constitutional floor below which Fourth Amendment rights may not descend. Legislatures cannot pass laws declaring your house or papers to be your property except to the extent the police wish to search them without cause. As the Court has previously explained, “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Nor does this mean protecting only the specific rights known at the founding; it means protecting their modern analogues too. So, for example, while thermal imaging was unknown in 1791, this Court has recognized that using that technology to look inside a home constitutes a Fourth Amendment “search” of that “home” no less than a physical inspection might.

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  WHAT DOES ALL THIS mean for the case before us? To start, I cannot fault the court of appeals for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The court of appeals was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help. Instead, I would look to a more traditional Fourth Amendment approach. Even if Katz may still supply one way to prove a Fourth Amendment interest, it has never been the only way. Neglecting more traditional approaches may mean failing to vindicate the full protections of the Fourth Amendment.

  Our case offers a cautionary example. It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the telephone carrier holds the information. But 47 U.S.C. §222 designates a customer’s cell-site location information as “customer proprietary network information” (CPNI), §222(h)(1)(A), and gives customers certain rights to control use of and access to CPNI about themselves. The statute generally forbids a carrier to “use, disclose, or permit access to individually identifiable” CPNI without the customer’s consent, except as needed to provide the customer’s telecommunications services. It also requires the carrier to disclose CPNI “upon affirmative written request by the customer, to any person designated by the customer.” Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. Plainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.

  The problem is that we do not know anything more. Before the district court and court of appeals, Mr. Carpenter pursued only a Katz “reasonable expectations” argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.

  Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments have gone unmade, leaving courts to the usual Katz hand-waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.

  United States v. Games-Perez

  Now, a pair of cases
showing textualism at work. This first one I’ve alluded to already: The government prosecuted Miguel Games-Perez for “knowingly violat[ing]” a statute that prohibits (1) a convicted felon from (2) possessing a firearm in interstate commerce. In response, Mr. Games-Perez argued that he didn’t know about his felony status. After all, the court that convicted him told him the crime wasn’t a felony. But Mr. Games-Perez’s argument was a losing one under Tenth Circuit precedent, which did not require the government to prove the defendant’s knowledge of his felony status. So Mr. Games-Perez asked the whole circuit to rehear his case and revisit its precedent. A majority declined, and what follows is an excerpt from my dissent in which I argued that the text’s terms favored Mr. Games-Perez. Tellingly, the government didn’t much dispute this and instead rested its case largely on legislative history. The result? On its view, people were left to sit imprisoned—for close to five years in the case of Mr. Games-Perez—on the basis of something other than the written law. (After I joined the Supreme Court, we took up a similar case in Rehaif v. United States [2019], and came to a very different judgment.)

  People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime. Today, this court votes narrowly, 6 to 4, against revisiting this state of affairs. So Mr. Games-Perez will remain behind bars, without the opportunity to present to a jury his argument that he committed no crime at all under the law of the land. Of course, rehearing en banc is reserved only for questions of exceptional importance. And I fully appreciate the considered judgment of my colleagues who vote against reconsidering our circuit precedent: after all, it is both longstanding and consistent with the rulings of several other courts. Even so, I respectfully submit this extraordinary situation warrants reconsideration.

  Mr. Games-Perez was prosecuted for “knowingly violat[ing]” a statute that prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce. But to win a conviction under our governing panel precedent, the government had to prove only that Mr. Games-Perez knew he possessed a firearm, not that he also knew he was a convicted felon. And, as I have explained before, it is difficult to see how someone might “knowingly violate[]” this statute without knowing he satisfies all the substantive elements that make his conduct criminal—especially the first substantive element Congress expressly identified. Just stating our precedent’s holding makes the problem clear enough: its interpretation—reading Congress’s mens rea (mental state) requirement as leapfrogging over the first statutorily specified element and touching down only at the second listed element—defies grammatical gravity and linguistic logic. Ordinarily, after all, when a criminal statute introduces the elements of a crime with the word “knowingly,” that mens rea requirement must be applied “to all the subsequently listed [substantive] elements of the crime.” Nor is this a situation where “knowingly” begins a long statutory phrase containing several elements and a reasonable question arises how far into the thicket the “knowingly” adverbial modifier extends. If the statute before us had said “whoever knowingly possesses a firearm after being convicted of a crime,” it might be possible to argue that “knowingly” modifies only “possesses a firearm” and not the later prepositional phrase, “after being convicted of a crime.” But that’s just not the grammar we face here. Here, Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.

  This court’s failure to hold the government to its congressionally specified burden of proof means Mr. Games-Perez might very well be wrongfully imprisoned. After all, a state court judge repeatedly (if mistakenly) represented to him that the state court deferred judgment on which his current conviction hinges did not constitute a felony conviction. Given these repeated misstatements from the court itself, Mr. Games-Perez surely has a triable claim he didn’t know his state court deferred judgment amounted to a felony conviction. Yet the government never had to face a trial on this question; it never had to prove its case that Mr. Games-Perez knew of his felon status. It was allowed instead to imprison him without the question even being asked.

  There can be fewer graver injustices in a society governed by the rule of law than imprisoning a man without requiring proof of his guilt under the written laws of the land. Yet that is what our precedent permits, excusing the government from proving an essential element of the crime Congress recognized. I believe that mistaken decision should be overruled.

  What’s particularly noteworthy is that the government offers no colorable defense of our precedent on the basis of the statutory language at issue. While not dispositive of the statute’s meaning, this glaring omission surely says something, and something not at all good, about the plausibility of our precedent and the appropriateness of Mr. Games-Perez’s conviction.

  What’s more, the extra-textual argument the government does press in response to the petition for rehearing hardly fills the void. The government rests its case entirely on the basis of a legislative history exegesis found in a divided decision of the Fourth Circuit. According to the government, that opinion shows that, although our statute’s predecessors did not contain an explicit mens rea, courts interpreting them required the government to prove that the defendant knew the object he possessed was a firearm—but not that the defendant knew of his felon status. From this, the government surmises, when Congress added the word “knowingly” to our statute, it must have meant only to adopt this judicial gloss and no more.

  The problem with all this is that hidden intentions never trump expressed ones. Whatever weight courts may give to judicial interpretations of predecessor statutes when the current statute is ambiguous, those prior interpretations of now defunct statutes carry no weight when the language of the current statute is clear. When the current statute’s language is clear, it must be enforced just as Congress wrote it. And whatever the legislative history may or may not suggest about Congress’s collective “intent” (putting aside the difficulties of trying to say anything definitive about the intent of 535 legislators and the executive, and putting aside as well the Fourth Circuit dissent and its powerful rejoinders about Congress’s putative intent in this case), the law before us that survived the gauntlet of bicameralism and presentment couldn’t be plainer. By its express terms, the statute does not authorize the government to imprison Mr. Games-Perez and people like him unless and until the government can show they knew of their felon status at the time of the alleged offense. The government did not attempt to prove as much here. And that is all we need to know. Congress could have written the law differently than it did, and it is always free to rewrite the law when it wishes. But in our legal order it is the role of the courts to apply the law as it is written, not some different law Congress might have written in the past or might write in the future.

  Besides, even if the government could somehow manage to squeeze an ambiguity out of the plain statutory text before us, it faces another intractable problem. The Supreme Court has long recognized a “presumption” grounded in our common law tradition that a mens rea requirement attaches to “each of the statutory elements that criminalize otherwise innocent conduct.” Our statute operates to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force. Yet, for its part the government never explains how a much disputed legislative record can overcome this longstanding interpretive presumption.

  In the end, I do not for a moment question that the standard for rehearing en banc is a high one or that the arguments one might muster against rehearing a
re thoughtful or principled. In my judgment, however, none of these arguments compels us to perpetuate the injustice of disregarding the plain terms of the law Congress wrote and denying defendants the day in court that law promises them. To the contrary, this case presents the surely exceptional situation where rehearing is appropriate to “give effect to [Congress’s] plain command, even if doing that will reverse…longstanding practice.” The Supreme Court has told us time and again that “[a]ge is no antidote to clear inconsistency with a statute.” And while we must and do always take special care before expressing disagreement with other circuits and reversing our own panel precedents, sometimes these things are done because they must be done. The Supreme Court has not hesitated to give effect to the unambiguous meaning of a congressional command even when all circuits to have addressed the question have failed to abide the statute’s express terms. Respectfully, I submit, this is a case where we should follow the Court’s lead, enforce the law as Congress wrote it, and grant Mr. Games-Perez the day in court the law guarantees him.

  United States v. Rentz

  If Games-Perez highlights the problem with straying from the statutory text, here’s an excerpt from a case that shows the virtues of sticking to it. Here, the Tenth Circuit faced (a different part of) the very same statute at issue in Games-Perez but used textualism rather than hidden legislative intentions to resolve the dispute. In the process, we used one of textualism’s most basic tools: good old-fashioned sentence diagramming. My daughter’s high school English teacher, a good friend of mine, appreciated this one.