PROPERTY, PRIVACY, AND JUSTICE GORSUCH'S EXPANSIVE FOURTH AMENDMENT ORIGINALISM.

• Author: Kahn-Fogel, Nicholas A.

INTRODUCTION I. JUSTICE GORSUCH'S CRITIQUE OF KATZ II. JUSTICE GORSUCH'S "TRADITIONAL APPROACH" AND ITS RELATIONSHIP TO PRECEDENT, HISTORICAL UNDERSTANDINGS, AND THE OTHER CARPENTER OPINIONS III. POTENTIAL LESSONS FROM SCHOLARLY PROPOSALS FOR EXPANSIVE PROPERTY FRAMEWORKS CONCLUSION INTRODUCTION

In Carpenter v. United States, (1) the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States (2) established in 1967 for identifying Fourth Amendment searches. (3) At the same time, the Court dramatically qualified a line of cases under Katz that had established the so-called third-party doctrine, which left government action to acquire information an individual has shared with corporations and other third parties entirely unregulated by the Constitution. (4) Instead, the Court held that use of a court order to obtain a customer's historical cell-site location information (CSLI) from a cellular service provider, at least for seven days of data or more, constitutes a search subject to the Fourth Amendment's presumptive warrant requirement. (5) While asserting that the decision would not affect "conventional" forms of surveillance, (6) the Court declared that the dramatic enhancement of the government's ability to surveil the citizenry wrought by advancements in digital technology, (7) the deeply revealing nature of CSLI, (8) and the essentially involuntary nature of the communication of that data from customers to service providers (9) necessitated its conclusion.

Between the early twentieth century and the 1960s, the Court determined whether a Fourth Amendment search had occurred by using a trespass test: in the absence of a physical intrusion into a constitutionally protected area ("persons, houses, papers, and effects" (10)) to gather information, surveillance by the state would not implicate the Fourth Amendment. (11) The Court's opinion in Olmstead v. United States (12) was the quintessential expression of this model. (13) In that case, because government agents wiretapped the defendants' phone lines without physical intrusion into their homes or offices, the Court held the surveillance to be a non-search. (14) In Katz, the Court decisively repudiated the Olmstead framework. (15) Instead, Justice Harlan's concurring opinion in Katz, which the Court later accepted as the holding of the case, (16) established that a search occurs when the government intrudes on an expectation of privacy that "society is prepared to recognize as 'reasonable.'" (17)

In 2012, in United States v. Jones, (18) the Court resuscitated the old trespass test, insisting, contrary to common understandings, that Katz had supplemented rather than supplanted Olmstead. (19) Thus, in Jones, because the government had placed a GPS monitor on the underside of the defendant's Jeep to track its movements (a physical intrusion on an effect to gather information), a search had occurred. (20) Although the Court concluded that a benefit of this trespass test was that it avoided the "vexing" problems of Katz's indeterminate privacy standard, it also insisted that Katz remained available as an alternative in cases in which the government engages in investigatory activity without a physical intrusion. (21) Overall, although every Justice on the Court at the time of Carpenter had signed or authored an opinion acknowledging Katz's shortcomings, a majority of those Justices have also signaled their continuing commitment to the Katz standard (at least as a second-line test), most recently in Carpenter itself. (22)

Nonetheless, Justice Thomas expressed the view in his Carpenter dissent that Katz should be overturned, (23) and Justice Gorsuch, dissenting separately, also critiqued Katz as indeterminate, (24) insufficiently protective, (25) and inconsistent with democratic values. (26)

In this article, I will analyze Justice Gorsuch's dissent in Carpenter, in which he urged the Court to employ a "traditional approach" to determining Fourth Amendment interests. (27) Instead of grappling with the indefinite and textually and historically unfounded "reasonable expectation of privacy" framework of Katz, Justice Gorsuch asserted, this traditional test would require judges to focus on whether "a house, paper, or effect was yours under law." (28) Although Justice Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of "papers" and "effects" and the kinds of property associated closely enough with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch's opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Justice Gorsuch's dissent, it is certain that his property model would be more expansive than the preKatz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Moreover, in situations in which his proposed approach fails to protect asserted Fourth Amendment rights, Justice Gorsuch might be willing to rely on Katz despite its shortcomings. (29) Finally, because a broad property rubric would involve a significant degree of judicial discretion, such a model could negate its own ostensible virtues, such as greater determinacy and democratic legitimacy. Thus, although this "traditional approach" would, like Katz, be flexible enough to allow the Court to adjust Fourth Amendment rules in the face of emerging threats to individual liberty or collective security, it would also perpetuate Katz's putative flaws. Nonetheless, Justice Gorsuch might prefer a flexible property framework over Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Justice Gorsuch's originalist sympathies.

This Article will track the organization of Justice Gorsuch's dissent. Part I will discuss Justice Gorsuch's critique of the Court's cases implementing third-party doctrine and Katz more broadly and his consideration of the desirability of revisiting these flawed decisions using the Katz standard. Part II will evaluate Justice Gorsuch's proposed model and will compare that approach with the use of property in Justice Kennedy's and Justice Thomas's dissenting opinions. Part III will discuss potential lessons from scholarly proposals for expansive property frameworks.

1. JUSTICE GORSUCH'S CRITIQUE OF KATZ

   Justice Gorsuch began his assessment of Katz with a discussion of Smith v. Maryland (30) and United States v. Miller, (31) a pair of decisions from the 1970s establishing that one lacks any reasonable expectation of privacy in information shared with third parties, including, in those cases, the dialed numbers that telephone users convey to telephone companies and bank records, respectively. (32) Smith and Miller provided the basis for the Sixth Circuit's determination in Carpenter that law enforcement obtainment of Carpenter's CSLI from his cellular carriers was not a Fourth Amendment search. (33) Those cases also seemingly led inexorably to the conclusion that "[e]ven our most private documents--those that, in other eras, we would have locked safely in a desk drawer or destroyed," which "now reside on third party servers," lack any Fourth Amendment protection because "no one reasonably expects any of it will be kept private." (34) As Justice Gorsuch aptly observed, however, "no one believes that, if they ever did." (35)

   First, Justice Gorsuch examined the possibility of living with the holdings of Smith and Miller despite the incompatibility of their implications with common intuitions about the kinds of information that will or should be kept private. (36) Justice Gorsuch concluded that this option was both normatively "unattractive" and doctrinally dubious. (37) Doctrinally, the Court's justification of the third-party doctrine as a reflection of voluntary assumption of the risk that information that one shares with a third party will reach the government represented a distortion of that principle as developed in tort law. (38) Under traditional conceptions of the doctrine, it applies only when one has explicitly or implicitly agreed to absolve another for harms resulting from risks the other person has created, not solely based on one's recognition that such risks exist. (39) Thus, the mere fact that a pedestrian realizes there is a risk that a car might veer off the street and onto the sidewalk where he is walking is insufficient to support a conclusion that the pedestrian has agreed to absolve the negligent driver of liability for the resulting harm. (40) Likewise, one's recognition of the possibility that a person or corporation with whom one has shared sensitive information will betray one's confidence by giving it to the government does not mean one has agreed to accept that risk, let alone the risk that the government will "pry the document" from the third party's hands and "read it without his consent." (41) Furthermore, the clarity of the rule that such information is never protected is insufficient to justify it; the opposite rule, that such information is always protected, would be just as clear. (42) Ultimately, Justice Gorsuch concluded that Smith and Miller represented a "doubtful application of Katz that lets the government search almost whatever it wants whenever it wants." (43)

   Second, Justice Gorsuch considered the possibility of revisiting the holdings of Smith and Miller using the Katz framework. Initially, Justice Gorsuch feared that "[r]ather than...