During his confirmation for, and swearing in as, an associate justice to the U.S. Supreme Court, Neil Gorsuch vowed to be a servant to the Constitution. That sworn allegiance does not apply to the Fourth Amendment of the Constitution. In a 20-page dissenting opinion in the Court’s June 22nd 119-page ruling in Carpenter v. United States, Justice Gorsuch made it abundantly clear that he wants to dismantle the Fourth Amendment by overruling decades of court precedents dealing with reasonable expectation of privacy protections.


Some background context is in order.


Privacy of Cell Phone Location Records


The Supreme Court in 2015 refused to hear a case from the 11th Circuit Court of Appeals which held that the police do not have to secure a search warrant to secure cell phone location records stored by a service provider. The Eleventh Circuit reasoned that a warrant is not necessary because the records belong to a third party. This is known as the “third party doctrine.”


This doctrine has been around for more than four decades and stands for the constitutional notion that “Fourth Amendment does not protect records or information that someone voluntarily shares with someone or something else.


Police Need Warrant for Cell-Site Location Data


The intense 5-4 Carpenter decision effectively held that this doctrine does not apply to “cell-site location information;” that the police must secure a warrant based on sufficient probable cause before they can track a suspect through “cell towers (or other sites) with which a cellphone is connected.”


The Court’s recognition of the “seismic shifts in digital technology” in relation to the Fourth Amendment did not sit well with Justice Gorsuch.


Writing for Think Progress on June 24, 2018, Ian Millhiser, author Injustices: The Supreme Court’s History of Confronting the Comfortable and Afflicting the Afflicted, said that “after lecturing his colleagues for 20 pages about how he has uncovered a way of interpreting the Fourth Amendment that is more ‘tied to the law’ than the last half-century of Supreme Court opinions on the subject, Gorsuch outright refuses to apply this mysterious new interpretation to the [Carpenter] case at hand.”


The case Gorsuch would like to see removed the Fourth Amendment library is Katz v. United States, a 1967 in which the Supreme Court held that the police must typically secure a warrant before they can listen in on a person’s phone call. The Katz decision created what has become known as the “reasonable expectation of privacy” standard.


The cases Gorsuch would like to see enshrined in the Fourth Amendment hall of fame are:


  • Olmstead v. United States – a 1928 decision in which the Supreme Court confronted law enforcement eavesdropping. The court reasoned that a warrant was not necessary in order for the police to wiretap a telephone call because such a wiretap was not a “physical invasion” of a person’s property.
  • United States v. Miller – a 1976 decision which created the third-party doctrine by holding that bank records do not enjoy Fourth Amendment protections.
  • Smith v. Maryland – a 1979 decision in which the court reinforced the third party doctrine by holing that the installation and use of a pen register in order to obtain every phone number dialed by a criminal suspect did not require a search warrant.


Justice Gorsuch, Millhiser says, would actually like to see the entire framework of the reasonable expectation of privacy standard established in Katz scrapped in favor of what the Justice calls a “traditional approach” to the Fourth Amendment—an approach with shades of the third party doctrine.


“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,” Gorsuch wrote, “it was tied to the law.”


The law Gorsuch refers to was spelled out by the Court in Olmstead which essentially held that the only expectation of privacy an individual enjoys under the Fourth Amendment resides within the four corners of one’s home or property.


Gorsuch believes that if the police want to search a “house, paper or effect” that belongs to an individual “under law,” then they must secure a warrant. However, if the police want to search something that does not belong to the individual under the law, then a warrant is not necessary.


The Carpenter case posed a question that reached beyond the simplistic “traditional approach” advocated by Justice Gorsuch: whether the location information emitted from a personal cell phone and picked up by the nearest cell towers and thereafter stored by the company owning the tower belongs to either the cell phone owner or the cell tower owner?


Cell Phone Date Give Police Near Unfettered Access to Track Individuals


In a narrow interpretation, the Carpenter majority, in an opinion written by Chief Justice John Roberts, reasoned that the overwhelming majority of people carry their cell phone with them every place they go and, thus, they enjoy a reasonable expectation of privacy that the police cannot track their every location.


As the Chief Justice observed: unfettered access to cell tower location/tracking information would give the police “near perfect surveillance, as if [they] had attached an ankle monitor to the phone’s user.”


Without overruling the third party doctrine, the Chief Justice nonetheless pointed out that cell tower location/tracking information is not the “garden variety” kind of information generally available to law enforcement under that doctrine. He noted that there was no way justices deciding the third-party doctrine could have envisioned the advent of the cell phone and its role in today’s society. He pointed out that carrying a cell phone today “is indispensable to participation in modern society” therefore “it can’t really be said that a cellphone owner is voluntarily sharing information about his location with his carrier.”


Search of Cell Phone Location Information is a Search Under 4th Amendment


Under these extraordinary circumstances, the third party doctrine is inapplicable as the Carpenter majority held. The Court, thus, concluded a search of cell tower location/tracking information is a search within the meaning of the Fourth Amendment to which a reasonable expectation of privacy attaches.


Gorsuch saw the question differently and with far less clarity. As Millhiser wrote:


“ … Whatever else can be said about reasonable expectations of privacy, there are literally thousands of court opinions examining this standard. Those decisions will offer a great deal more legal guidance than the half-baked [‘traditional approach’] idea proposed by Gorsuch.”


What Gorsuch really wants, Millhiser said, is to tear down the constitutional “fence” the Katz decision erected around the police. Under his “traditional approach,” cell tower location/tracking information enjoys a reasonable expectation of privacy only if Congress and/or state legislators protect it through statutes, not the constitution.


“When you strip away all the rhetoric,” Millhiser said, “the world Neil Gorsuch wants looks a while lot like Olmstead. State legislatures or Congress can give you privacy rights, but they can also take them away. And the Fourth Amendment will provide little backstop in a case like Carpenter.”


We agree.