Justice Gorsuch’s fascinating, constitutional dissent in Carpenter

The Carpenter decision caused plenty of rejoicing among civil libertarians who are worried about the government’s ability to gobble up personal cell phone data being held by providers. Both Ed and Jazz have written about this already with the former’s piece a detailed description of the decision, while the latter seeks to poke holes in the majority’s decision. I’m quite happy with the Supreme Court’s ruling (I am a libertarian after all) although I understand – and don’t disagree – with some of Jazz’ qualms on the issue re: big data. Suffice to say, data collection by corporations is an issue particularly when it’s sold to outside vendors. This problem isn’t one the government should solve with its promulgation of grandstanding politicians looking to run home to constituents claiming, “See we did something!” The rise of MeWe shows there are alternatives to big data. Alas, it’s a discussion for another day and column.

One of the more fascinating – if not the most fascinating – dissents to Carpenter is the one written by one Justice Neil Gorsuch. The second year Supreme Court justice used the Carpenter case to write a commentary on the Court’s failure to protect the Fourth Amendment in previous decisions. Gorsuch’s acumen and comprehension of the issue is a thing of beauty and one everyone should take time to read, despite its length. One might even guess Gorsuch’s dissent could almost be a concurring opinion (Reason’s Damon Root agrees with me in his analysis) and, indeed, may have been one if Chief Justice John Roberts hadn’t sided with Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonja Sotomayor.

Gorsuch’s main argument is simple: the majority isn’t going far enough.

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 CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particu- lar 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.

Valid questions and criticism (one which Jazz correctly noted in his piece). Gorsuch goes a step further to declare the majority is putting an undue burden on lower courts by giving them “two amorphous balancing tests, a series of weighty and in- commensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition.”

It’s here where Gorsuch brings out a spear akin to Odin’s Gungnir and drives it into the heart of his argument (emphasis mine).

(T)he fact that a third party has access to or possession of your papers and effects does not necessarily elimi- nate 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.” Black’s Law Dictionary 169 (10th ed. 2014); J. Story, Commentaries on the Law of Bailments §2, p. 2 (1832) (“a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, expressed or implied, to conform to the object or purpose of the trust”). 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…

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…

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 protec- tions of the Fourth Amendment.

The gallery of libertarians roar with approval at Gorsuch’s argument. It is akin to the words written by St. George Tucker in 1803 whilst describing the Fourth Amendment.

The case of general warrants, under which term all warrants not comprehended within the description of the preceding article may be included, was warmly contested in England about thirty or thirty-five years ago, and after much altercation they were finally pronounced to be illegal by the common law. The constitutional sanction here given to the same doctrine, and the test which it affords for trying the legality of any warrant by which a man may be deprived of his liberty, or disturbed in the enjoyment of his property, can not be too highly valued by a free people.

Gorsuch should be applauded for his dissent and prodding of the majority towards a more originalist viewpoint of the Constitution. His arguments are beyond sound and something which is sorely missing in American legal theory – yet appears to be making a slight return. One has to hope his line of thinking will slowly start influencing his Supreme Court colleagues in future cases.