The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information

In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location).  In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration.  But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.

In particular, Congress has provided customers of cell phone companies with protection as to their location information.  In 47 U.S.C. 222(a), Congress states that “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.”  Other provisions make clear that location information is part of the information to be protected.  47 U.S.C. 222(c), (g).

Some have argued that this provision creates a property right or interest in the customer.  While this information has been disclosed to a third party (the cell phone company), it is argued that the customer still retains a property interest in its protection.  Thus, if one has a property oriented understanding of the Fourth Amendment, as Justice Scalia seemed to have, then this property right might indicate the customer had a right to be protected under the Fourth Amendment.

This is an interesting argument, but it may or may not be right under the original meaning.  As I explained in my prior post, the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Therefore the question is whether this information is a “paper” or “effect.”  Perhaps Justice Scalia had a property oriented theory of the Fourth Amendment, but the text of the Amendment does not speak of property, but of more specific things, such as “paper” or “effect.”

Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect.  A paper would refer to the actual physical piece of paper, not the information contained on it.  An effect would refer to personal property or movables that a person can carry on their person.  In neither case would the “information” be a paper or effect.  Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself.

Yet one might argue that these terms should be read more broadly.  In particular, perhaps an effect should be understood to include not merely personal property movables but also property in information.  Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.

But maybe a different interpretive rule would justify a broader reading.  If property in information of the relevant kind did not exist in 1791 – there were patents, but no privacy interests seem implicated by them, and trade secrets did not exist until the 19th century – then one might say that the relevant legal environment did not exist at the time of the Fourth Amendment.  In those circumstances, sometimes it makes sense to answer the question based on an analogy.  For example, one might argue that freedom of press might extend to radio or tv news, even though they did not exist at the time of the First Amendment, on the analogy that they are similar to the printing press in the relevant respects.  Similarly, one might argue that if property in information of the relevant kind existed in 1791, the Fourth Amendment would have protected it.  Maybe.

In a future post, I hope to show how Congress, the states, or private parties might protect against disclosure in a way more likely to satisfy the Fourth Amendment’s original meaning.

Reader Discussion

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on December 05, 2017 at 10:25:39 am

OK, great BUT:

If anyone has a *property* right in the information / data, etc - it is the telecommunications company that has, at a *measurable expense* created, stored, managed and analyzed this *property* for what is presumably legitimate purposes, i.e., "billing", accounting, etc.

How comes it to be the property of the customer AND not the company?

Who owns the data / records of my mortgage payments? my credit card usage?

Apparently, not I as the CFPB has access to every record on 50 million mortgages and 300 million credit card accounts.

Which shall it be, boyos? Either the gubmint can or cannot access these records? either the customer owns them or the company owns them?

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on December 05, 2017 at 12:35:22 pm

Seeing as how most folks have some variation of an "All you can eat" phone and data plan, how should "business records" include anything other than overall data usage; including perhaps, specific information on international roaming or data roaming, etc, and the information needed to back up such add-on charges. It seems the government feels entitled to obtain way too much information to go on fishing expeditions without a specific court order of some sort.

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Doug Wenzel
on December 05, 2017 at 12:56:39 pm

Much closer here. I think the word "effect" was used to mean personal property (or chattel property) as opposed to real property. For instance, Noah Webster’s 1828 dictionary defines “effects” as “goods; movables; personal estate.” A piece of information (assuming it is the property of the individual), is a part of his personal property. It clearly isn't real property, and so what kind of property is it if not personal? As a part of his personal property, it would be considered an effect. All papers were also effects, but papers were explicitly called out to make extra clear due to the sensitive nature of a person's private papers.

Madison's original proposal for the Fourth Amendment was "[t]he rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated" Notice that instead of "effects" Madison used the words "other property" which is approximately how I think effects should be understood (but it would not include other real property or fixtures to land).

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Devin Watkins
on December 05, 2017 at 13:03:40 pm

Interesting assertions in the piece, and by Mr. Gabe.

It would seem a little absurd to think the constitution would protect a citizens paper and not the information (intellectual property, even if it isn't explicitly stated) contained there-upon it, or that the government or a citizen would have any interest in blank paper, as to anticipate a risk of its seizure, and a need for its protection from such a seizure in a search, unless of course, they (gubmint agents) have ulterior motives, such as some gumshoe needing it to roll a cigarette. Then again, a smart-aleck might argue the lead or ink transferred during writing/typing onto the paper is as much property effects as the paper, as to warrant protections.

Here are my reservations about prohibiting collection of cell-tower location information without a warrant: To my understanding, the data collected is not precise enough to accurately pinpoint a person's phone's (within 3/4 of a square mile in urban setting, further in rural, so I read),location.

It seems one of Carpenter's contentions (among several) is that this cell-phone location data can track someone's location to their home, a place where there is (or should be) a heightened expectation of privacy (and greater protections).

However, based on the above accuracy ranges, it would seem virtually impossible to definitely pin-point someone to be inside their home, or to just as easily be on their front porch or in their front yard, for that matter.

Another argument by Carpenter is the frequency of locations (essentially 24/7 surveillance) that is at issue, that is an excessive intrusion.

So, to me this begs the question, is this location/personal movement data not basically the same type and quality of data that a (very determined & well funded) gov't agent could not obtain by physical surveillance, from a car, or from a window across the street from a "person of interest" home, or from aircraft, where I'm not aware that a warrant would ever be required in order to conduct. So, you can determine a person is in their home, so what of it, you can do the same sitting from a car or room across the street. You can't see what they are doing.

I don't like Big Brother any more than the next guy, I'm just trying to look at the data collected objectively, and I am not convinced this type of data constitutes a violation of the 4th Amendment, especially when coupled with the third-party component.

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Image of Paul Binotto
Paul Binotto
on December 05, 2017 at 13:23:42 pm

Yep, BUT:

the issue is still, "Whose property is it?"

Did he create it? did he maintain it? did he store it? Did he even know it existed?
While the data may have an *effect* upon him, clearly, it ought not to be subsumed under Webster's definition of effects.
If, as an example, I happen to video a neighbors movements, around the lake, is it my property or his?
If it turns out that the neighbor is actually a stalker, using his paddle boat to surveil his prey,and is eventually caught, may the police use my video to prove proximity to the crime? - or are we to maintain a fiction that MY video is HIS property?

What really gets me is all these folks who so willingly provide all manner of private information to FaceCrap / Snapsh*t, etc. and then complain because someone, i.e., the police also may also gain access to similar information.

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Image of gabe
on December 05, 2017 at 15:45:14 pm

Once again, kiddies, I ask: "Whose property is it?" - or should I ask whose property will the Black robes decide it to be. The answer could be anybody's as evidenced by this idiotic decision by another brilliant jurist who, in her Solomonic wisdom determined that Starbucks could not close 77 of it's Teavana stores, even though these stores were money losers BECAUSE, well, because Starbucks was bigger than the shopping mall and could better withstand the financial impact of closing stores.

So I guess "property", like obscenity, is in the eye of the beholder - or something: Are you kidding me?


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on December 05, 2017 at 17:04:21 pm

This shouldn't surprise you, Mr. Gabe, that this Judge was merely applying a governmental model of deficit spending and accounting practices to the private business sector. She's probably only sorry she could not figure out, in the process, a way to get tax-payers to perpetually float this losing venture.

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Paul Binotto
on December 05, 2017 at 21:34:17 pm

The user did not create the cell records, nor did he store them, and he may not have even known they existed. Normally when someone creates a record, then they own the record. If you are talking a video of your neighbor's movements, the video is still owned by you because you created it (in fact you own the copyright to the video which gives you the right to exclude others).

But that isn't the end of the story. Once you have ownership over the record, you can choose to re-assign the property right to another person via a contract. You may maintain possession of the record, but the other person can then have at least some property rights in the record even if they do not maintain possession (possession is not required for ownership). If you look at a lot of ISP or telecom contracts, its entirely possible for these to assign ownership. You also see this often in many social media terms of use contracts (which a person has to agree to to use the service). For instance, Facebook says "You own all of the content and information you post on Facebook." Dropbox says "
When you use our Services, you provide us with things like your files, content, messages, contacts and so on ("Your Stuff"). Your Stuff is yours. These Terms don't give us any rights to Your Stuff except for the limited rights that enable us to offer the Services." These contracts are re-assigning the property rights over these digital records from Facebook/Dropbox to the end user.

Lastly, as in this case, property rights can be established by statute. The statute explicitly gives the right to exclude others to the end user (not the telecom), this creates a partial ownership by the user (the telecom still maintains many of the rights of ownership, but not the right to exclude and share it with others).

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Devin Watkins
on December 06, 2017 at 13:16:53 pm


OK, but.....

Facecrap, et al routinely disseminate this information, and much more, such as interests, sites visited, purchases, etc EVEN if they claim that you own the information. Moreover, recent comments in some tech blogs, and by Facecrap, indicate that Facecrap now arrogates to itself the right to disseminate similar information *owned* by third parties, not members of Facecrap, who happen to incidentally "chat" / communicate with, members of Facecrap.

So I ain;t buying that claim that members *own* the information. Sure, you own it BUT I will seel it to my advertising partners.

As for Legislation - Yep! it is true that the Legislative HAS assigned property rights (such as they are) to the cell phone user. However, where is it in the grant of power to the Legislature that enables the Legislative to assign my (cell companies) property to another? Clearly, the user did nothing to create, use, maintain or protect this *property*; just as clear the cell company is the creator of such property. How is it that by statute, my property is assigned to another. They may just as well assign a limited property right to the subject of a book whose movements are chronicled throughout the book - and diminish the property rights of the author.

Ain;t buying that one, either!

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Image of gabe
on December 06, 2017 at 23:22:05 pm

Facebook does include clauses that let them share this information with others even while you still own it.

The user actually is a part of what creates many of these records. It is the users' actions in placing the call which is being recorded, so its not like the user has no part in the creation of the record. Having joint ownership over the record kind of makes sense from a first principles standpoint even without the government legislature. Also many of the contracts already included such language prohibiting disclosure to third parties in them (which is why the telecoms didnt really care about this legislature). But you are right they do not maintain or protect the property, so it is rightfully at least partially owned by the telecom (they can delete it for instance).

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Devin Watkins
on December 12, 2017 at 01:35:21 am

[…] Justice Gorsuch, on the other hand, took a property rights approach to the Fourth Amendment. He cited a federal statute that imposes a duty on phone companies to keep customer data confidential. This is enough to create a property interest in the data, he said, so the government cannot seize the customer’s property without a warrant any more than it could invade someone’s property to put a GPS device on it without probable cause. [More on the property rights rationale here.] […]

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Image of Fourth Amendment: Expectation of Privacy or Property Rights? - Fairfax Free Citizen
Fourth Amendment: Expectation of Privacy or Property Rights? - Fairfax Free Citizen
on December 14, 2017 at 03:12:02 am

[…] Professor Mike Rappaport addresses the key Fourth Amendment issue of the day in his piece “The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information.” He […]

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Image of SCOTUS and the Spy in your Pocket | Real Patriot News
SCOTUS and the Spy in your Pocket | Real Patriot News

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