The Supreme Court appears poised to overturn decades of precedent to expand online privacy rights. For years, the interpretation of the Fourth Amendment has assumed that any information given to a third party loses all protection. But in the new online world, these antiquated notions would make almost all online activity open to government inspection without a warrant. I was at oral arguments on Wednesday in Carpenter v. United States, and this seemed too much for many of the Supreme Court justices.
In this case, the government seized cell tower information about a suspect, without a warrant, describing the person’s location over a 127-day period. The old “third-party doctrine” would say that because this information was shared with the telephone company, it is unprotected by the Fourth Amendment. Almost all the justices seemed willing to consider limiting that doctrine. Justice Sotomayor commented that most Americans “want to avoid Big Brother,” the “concept that government will be able to see and locate you anywhere you are at any point in time.”
The harder question is how the current doctrine will be modified. Justice Alito seems to want what is called the “mosaic theory of the Fourth Amendment,” the idea that several small constitutional warrantless searches added together could violate the Fourth Amendment without a warrant. While this has never been a majority opinion on the Court, it has had many justices endorse the idea. The Justices struggled with the huge line drawing problems of just when a search goes “too far” and requires a warrant. No resolution to these hard questions appeared to occur at the oral argument.
A more promising line of reasoning was forcefully presented by Justice Gorsuch: should this be decided by property rights? Gorsuch asked the government if people had a property right in their digital information, would the seizure and search of it by government require a warrant? The government refused to answer the question eventually claiming, “I am not sure.” That’s about as close to a concession as the government is likely to provide.
This line of argument is very similar to Justice Scalia’s majority opinion in United States v. Jones (2012). In that case, FBI agents attached a GPS to a suspect’s car and tracked his movements for 28 days. Scalia’s opinion recognized that in attaching the GPS to the suspect’s car, the FBI violated his property rights to search for information without a warrant which is unconstitutional under the Fourth Amendment. Property rights are critical to properly applying the Fourth Amendment and Gorsuch seems to be upholding the legacy of Scalia.
So the question then becomes, do customers have some kind of property interest in the telephone company’s records? Gorsuch pointed to Section 222 of the Stored Communications Act which recognizes the privacy requirements of “customer proprietary network information” requiring that such information cannot be released without the affirmative written request of the consumer.
We should not stop at just the property rights recognized by Congress. A contract can also distribute the property rights of digital information. Property rights are the rights that derive from ownership such as the right to use or exclude others from using. If the consumer has a contract with a company under which distribution is prohibited without the consumer’s consent, that is a property right. It may not be complete ownership of the digital information by the consumer, but includes at least partial ownership over the information. Property rights like that cannot be violated, under the Fourth Amendment, without a warrant.
Alito challenged the idea that the consumer has a property right over the data by noting that the consumer can’t stop the company from creating the record, or force the company to destroy the record. It is true that the consumer doesn’t hold all the property rights over such digital property. But the question under the Fourth Amendment should be, do they hold any property right in the information? In this case, the Stored Communications Act allows consumers to prevent distribution of the records to third-parties without their consent, which should be enough to trigger Fourth Amendment protection.
Today the government can search your online records without a warrant destroying any notion of online privacy. This could be a big step towards an online world where the government cannot access your online records without a warrant. True internet privacy is a realistic possibility after this case.
It’s always hard to tell exactly which way the Court will go just from oral argument, but yesterday was encouraging. Carpenter seems likely to win, but the reasoning may well split the justices. Let us hope that they recognize the importance of property rights as they did in Jones.
Devin Watkins is an attorney with the Competitive Enterprise Institute. Devin Watkins previously worked at the Cato Institute as a legal associate and interned at the Institute for Justice.