The rationale for what is now called “originalism” has chiefly to do with the legitimacy of the 1787 Constitution.
In my last post, I discussed whether the federal statute conferring protection of customer cell phone information, including location information, is sufficient to render such information a paper or effect. My answer is that, based on my limited research, I am a bit skeptical that such information constitutes a paper or effect. The terms paper and effect do not seem to refer to information, but to other things.
But there is a better way to protect this information, which might be accomplished by contract, state statute, or federal statute. Imagine that a cell phone company and its customers reached an agreement that specified that all of the cell phone company’s records about the customer constituted the joint property of the customer and the company. The agreement might provide that the records (and the information contained within them) should not be disclosed to third parties, except as allowed by the agreement. The agreement might allow the cell phone company to use the records for certain purposes, such as to collect on a bill from the customer.
Would this agreement render the records a paper or effect? There is a strong argument that it would. The focus would be on the records themselves. If the records were in paper form, then they would clearly be a paper. If the records were in electronic form, they might constitute a paper or effect. If the records were on a memory stick, they clearly would be an effect.
What if the records were on a hard drive contained in a computer? The hard drive by itself again would seem to clearly be an effect. But would a hard drive that is connected to a computer or to a server be an effect? If the computer or server was personal property that could be moved – which it would seem to be – then the computer or server would be an effect. But would the portion of the computer that contained the records be an effect? It is not clear why not. It is not clear why the fact that the records are part of a larger piece of property that contains other people’s property would mean the records are not an effect.
While this result could be accomplished through a contract between the cell phone company and the customer, it could also be produced through legislation by either a state or the federal government.
There is, of course, no obligation on the part of Congress or the states to provide this protection. But the private parties and the individual states could choose to do so.
It might be argued that Congress could prevent this from occurring. For example, the government reads the existing statute providing protection to customers as allowing an exemption for government search without a warrant. But such a statute would be problematic if it applied to what would otherwise be a paper or effect. It would be problematic for Congress to pass a statute that provided that owners of certain types of property were not entitled to Fourth Amendment protection. Similarly, there would be constitutional issues if Congress sought to prohibit customers and cell phone companies from entering into arrangements that would provide Fourth Amendment protections to those customers.