On Monday in Chatrie v. United States, the Supreme Court held that government-ordered analysis of data collected via Google’s Location History feature, which tracks the whereabouts of cellphone users, qualifies as a “search” within the meaning of the Fourth Amendment. Justice Neil Gorsuch concurred in that judgment, but he wrote separately to reiterate his longstanding critique of two dubious concepts that have figured prominently in the Court’s Fourth Amendment reasoning for half a century: the “reasonable expectation of privacy” test and the third-party doctrine.
In the 1967 case Katz v. United States, the Supreme Court held that electronic surveillance of telephone conversations requires a search warrant. By attaching a monitoring device to a telephone booth used by a suspected bookie, the majority said, the FBI had “violated the privacy upon which [the target] justifiably relied while using the telephone booth.” The surveillance “thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” In other words, Justice John Marshall Harlan II said in a concurring opinion, the Fourth Amendment applies when someone has an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.'”
Gorsuch’s Chatrie opinion notes one problem with that test: “It has no basis in the Constitution’s text or history.” He adds that it has never been clear how courts should determine when an “expectation of privacy” is “reasonable.”
Maybe Katz “poses an empirical question, tagging reasonable expectations of privacy to those privacy expectations ‘people actually have,'” Gorsuch writes. “Or maybe the question is a normative one, asking what expectations reasonable people ‘should…have.’ In truth, nobody knows and, either way, this Court is the wrong body for the task. We aren’t equipped to make empirical assessments about what most Americans think. Nor is it our job to enforce our own normative judgments, as opposed to those embodied in the Constitution and laws.”
The Supreme Court compounded the uncertainty in the 1976 case United States v. Miller by holding that people do not have a reasonable expectation of privacy in their bank records. By voluntarily sharing financial information with a third party, the Court said, bank customers relinquish any constitutionally cognizable privacy interest in that information. The Court reiterated that principle in the 1979 case Smith v. Maryland, which involved telephone records.
Under the third-party doctrine, Gorsuch notes, “an individual maintains no ‘reasonable expectation of privacy’ in information he shares with others. Accordingly, the government may freely search a person’s papers and effects without triggering any Fourth Amendment scrutiny so long as they are entrusted to the care of someone else.”
As with “Katz itself,” Gorsuch says, “this Court has never offered a persuasive justification for its offshoot. Nor do I see how it might. Do we seriously mean to suggest that most Americans think they have no ‘reasonable expectation of privacy’ in records held for them by their banks or pharmacists or doctors or technology companies? If not, on what authority might we rule that the American people should not reasonably expect privacy in materials like those? Really, the third party doctrine amounts to little more than a ‘doubtful application of Katz that lets the government search almost whatever it wants whenever it wants.'”
The challenge of combining the Katz test with the third-party doctrine, Gorsuch says, is similar to the puzzle posed by the Supreme Court’s definition of obscenity in the 1960s: “We know a ‘reasonable expectation of privacy’ (and an exception to the third party doctrine) when we see it.” He proposes a different approach, tied to the language of the Fourth Amendment.
Among other things, the Fourth Amendment protects “papers” and “effects” from “unreasonable searches and seizures.” As Gorsuch sees it, the question in Chatrie is whether Location History information falls into one of those categories.
“Based on the evidence the parties have put before us, it appears the word ‘effects’ was understood at the time of the Fourth Amendment’s adoption to embrace most any kind of personal property,” Gorsuch writes. He cites several pieces of evidence suggesting that a cellphone user’s Location History information qualifies as his property.
“As Google puts it, and no one seriously disputes, Location History serves as a ‘diary’ or map ‘of a person’s travels,'” Gorsuch says. At the time of the Virginia bank robbery investigation at issue in Chatrie, Google’s agreement with cellphone users “referred to Location History as ‘your’ (meaning, the user’s) ‘information.'” The agreement allowed each user to “review” and “edit” his location data or even “export or delete that data ‘from Google’s servers at will.'” Google promised to protect the information from “unauthorized access, alteration, disclosure, or destruction.”
In short, Gorsuch writes, the robbery suspect who brought this case, Okello Chatrie, “had the rights to enjoy, manage, alter, dispose, and exclude others from what amounted to an electronic diary or map of his travels. And as someone who held that many ‘sticks in the bundle of rights…commonly characterized as property’—including the ‘most treasured’ and ‘essential’ right to exclude—he has a strong claim that the Location History data was his personal property.”
Gorsuch also notes the treatment of such information under Virginia law. “That State’s Computer Crimes Act expressly describes ‘computer data’ as a form of ‘[p]roperty,'” he writes. “Altering or making an unauthorized copy of computer data can constitute the crime of ‘computer trespass’ (another property law concept). And the State provides a right to sue for anyone ‘whose property or person is injured’ by violations of the Act (again suggesting a right to exclude).”
Virginia is not unusual in these respects. Most states “have enacted or amended laws to treat digital records and data as personal property,” the Cato Institute’s brief in Chatrie notes. “Many of these laws make it illegal for private actors to access or convert another person’s digital data. By explicitly defining digital records as ‘property’ and by enacting digital privacy statutes that give users the right to obtain, control, and delete their personal information, states have recognized that users often own their digital records.”
At the time of the robbery investigation, Google stored Location History data on its own servers. Does that matter? The third-party doctrine suggests it might, although the majority in Chatrie declined to apply that exception for reasons that are not entirely clear. But from a property rights perspective, the fact that Chatrie entrusted his data to Google for certain purposes is not decisive.
“An individual need not have ‘complete ownership or exclusive control’ before he can assert a Fourth Amendment challenge against the search of real property,” Gorsuch notes. The Court has “long recognized” that tenants and family members have Fourth Amendment rights with respect to the places where they live, he says, and “I fail to see why the law should differ markedly when it comes to personal property.”
When you “[t]oss your keys to a valet at a restaurant” or “[a]sk your neighbor to look after your dog while you travel,” Gorsuch notes, “you may entrust your personal property to another and license him to do certain things with it, much as Mr. Chatrie did with his Location History data. But that hardly means that property is no longer yours.”
Nor does it matter, in Gorsuch’s view, that the Framers “might not have imagined an electronic diary or map of one’s travels,” since “the terms found in the Fourth Amendment carry their original public meaning and can bear more applications than its drafters might have expected or intended.” Just as the First Amendment “protects speech over the internet today no less than it did speech delivered in the town square in 1791,” he says, “it should hardly come as a surprise that the Fourth Amendment might protect as personal ‘effects’ electronic diaries of one’s travels as it always has more traditional ones.”
In Gorsuch’s view, “Mr. Chatrie’s Location History data qualifies as his personal property.” And while he wishes the majority opinion in Chatrie reflected “a more traditional approach to the Fourth Amendment,” he sees signs that his colleagues might be receptive to his take.
“Why is the Court so protective of Location History data, email, and electronically stored photos and calendars?” Gorsuch asks. “Because, it turns out, ‘a user reasonably understands’ all those things ‘as his own.’ Put another way, they are his effects. And why does the Court hold Mr. Chatrie’s effects protected by the Fourth Amendment even though a third party stores them? Because, the Court says, those effects remain his ‘even though [they are] stored on Google’s servers.’ Put another way, entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours.” Although “more work may lie ahead to bring coherence to our Fourth Amendment jurisprudence,” Gorsuch concludes, “perhaps this is a start.”
