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The Original Meaning and the Carpenter Case: “Their Papers”

The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.  One of the issues raised by the case involves the Fourth Amendment’s third party doctrine.  Does the Fourth Amendment apply to protect records about a person that are held by a third party such as a vendor?  Under the Supreme Court’s third party doctrine, securing this information does not require a warrant, because the information is held by a third party.  As the Court stated in US v. Miller, a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

In Carpenter, the FBI obtained, without a search warrant, 127 days’ worth of historical cellphone records about a suspected armed robber named Timothy Carpenter. “Thanks to those records, the government identified the cell towers that handled Carpenter’s calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed.”  The question is whether the Fourth Amendment applies to this type of search.

As usual, I am interested in the original meaning of the Fourth Amendment.  While I strongly sympathize with the individuals in these type of cases, it is not clear that the original meaning operates to protect them.  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.”

The records in this case are likely papers or effects (personal property), depending on the form they are in.  But they are unlikely to be the papers or effects covered by the Fourth Amendment.  The Amendment speaks of the right of the people to be secure in their “papers and effects.”  This suggest that the papers or effects must be owned or possessed by the person’s who seeks to protect them.

I do not really see an alternative interpretation.  One might argue that a person should be able to protect information about himself.  And while that might be desirable from a policy perspective in some circumstances, such as Carpenter, it does not really capture the language here which talks of “their papers” – that is, their own papers.

Does that mean that the original meaning allows the government free access to information about people held by vendors and other third parties?  Not necessarily, which I hope to show in a future post.

Reader Discussion

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on November 30, 2017 at 10:19:55 am

I agree as to your interpretation of the Fourth Amendment, but not as applied to this case. The question is, “Is the information the government seeking partially owned by the customer?” If it is, then the seizure and search of those records without the consent of the customer or a warrant is a violation of the Fourth Amendment.

Under the Stored Communications Act (47 U.S.C. § 222(c)), under the title “Confidentiality of customer proprietary network information”:
(1) Privacy requirements for telecommunications carriers
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.
(2) Disclosure on request by customers
A telecommunications carrier shall disclose customer proprietary network information, upon affirmative written request by the customer, to any person designated by the customer.”

So Congress has recognized a property right in the consumer to exclude others from accessing this information. That is enough of a property right to trigger Fourth Amendment analysis as the information is now at least partially owned by the consumer. The papers/effects of that data is “thiers,” even if they do not currently have possession of the data (like someone borrowing your car doesn’t mean the police can search it at-will without a warrant or cause). Now other provisions of the act allow these non-warrant orders to access the data, but those provisions cannot defeat the Fourth Amendment warrant requirements.

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Devin Watkins
on November 30, 2017 at 10:59:12 am

Ok, so a question (or two):

1) "So Congress has recognized a property right...."
Did Congress *recognize* (as in a pre-existing right) or did Congress grant a property right as a matter of positive law?

2) "Now other provisions of the act allow these non-warrant orders to access the data, but those provisions cannot defeat the Fourth Amendment warrant requirements."
How is that other provisions of the same statute may permit access yet still be violative of the 4th Amendment.
If in question one, the answer is the latter, i.e., that the "property" right" is merely a matter of positive law, then why can not the same statute limit those "granted" property rights.

3) Let us assume that this miscreant was traced not by cell tower date but rather by a police search of credit card usage, the results of which provided sufficient evidence of the criminals proximity to the crime. would this also be a violation of the 4th Amendment? or simply of a statute *granting* comparable property rights to credit card holders?
If either case, how can we explain the actions of the Government, via its instrument, the CFPB, which has accessed the credit card information (balances, purchases, rates, payments, etc) of every credit card user in the United States AND has accessed the information on over 50 million mortgages?
While it is debatable that the CFPB would be seeking to prosecute me for my wine purchases, it is interested in prosecuting (a.k.a. "negotiating a settlement" with) the credit card companies. The credit card companies would appear to have a clearer "property" right in the data than do I?

How do we reconcile this?

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gabe
on November 30, 2017 at 11:39:33 am

1) Well there were a lot of contracts protecting the rights before, so its arguable if they codified an existing right that existed under most such contracts. But if not, then they at least granted the property right as a matter of positive law.

2) Here is how Justice Gorsuch questioned the government on exactly this topic:

JUSTICE GORSUCH: so the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government's position?
Government Attorney: No, no, but I think that the -­
JUSTICE GORSUCH: And so -- so could we also say maybe that they also get this property right subject to having a non-Article III judge decide the case, or quartering of troops in your home? Could we strip your property interests of all constitutional protection?
Government Attorney: Well, those are pretty far afield. I -- I think what's going on here -­...
.....
JUSTICE GORSUCH: So the Fourth Amendment controls, not what the statute says with respect to the disclosure of the information?
Government Attorney: the Fourth Amendment applies once the Court has identified what interest the statute creates.
JUSTICE GORSUCH: Right. The statute creates customer proprietary information in Section 222 and then the Fourth Amendment will determine when it can be revealed. Right?
Government Attorney: No. The statute actually creates -­
JUSTICE GORSUCH: Why does the statute control the Constitution? I think you are saying the statute controls the Constitution.
Government Attorney: No, I think that the interests that the statute creates have to be looked at as a whole. And this Court has been very careful to -­
JUSTICE GORSUCH: So the bitter -- the bitter with the sweet.
Government Attorney: Yeah, I know the Court has rejected that in the due process context, but here we are looking at what interests Congress has sought to protect and -­
JUSTICE GORSUCH: So why couldn't Congress also say you don't get an Article III judge to determine this issue?
Government Attorney: That seems so non-germane to what Congress was trying to do. In Section 222, what Congress was trying to do was to say, look, the -- the companies are collecting a large amount of information. We recognize that there are privacy interests in this. We want to give recognition to those privacy interests. We do not want to hamper legitimate law enforcement.
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If the government (state or federal) grants a property right like this, then the Fourth Amendment becomes attached to it regardless of what the government wants (like Due Process rights become attached as well). So one part (granting the property right) caused another part (allowing disclosure without a warrant) to be unconstitutional.

3) I wish the Court would recognize the Fourth Amendment property rights of companies. So far they have refused to do so. And there isn't a comparable statutory right. I think the Court should also consider contractual rights to assign property rights applicable to the Fourth Amendment, but they have not yet gone there. That is why the CFPB has been able to get away with what it has done.

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Devin Watkins
on November 30, 2017 at 12:02:38 pm

Devin:

Thanks.

I wonder what all the "nays" on gorsuch's confirmation will say IF they read how this conservative "troglodyte" has approached this civil liberty protection?

They will still hate him!

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gabe
on November 30, 2017 at 15:41:53 pm

[…] idea that these are specifically Carpenter’s papers or effects — skepticism also expressed by Mike Rappaport and Orin Kerr. And it is true that Carpenter may not possess these records, and perhaps never did. […]

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Image of Thoughts on property and positive law after the Carpenter oral argument – Accident Lawyers
Thoughts on property and positive law after the Carpenter oral argument – Accident Lawyers
on November 30, 2017 at 16:00:41 pm

[…] these are specifically Carpenter’s papers or effects — skepticism also expressed by Mike Rappaport and Orin Kerr. And it is true that Carpenter may not possess these records, and perhaps never did. […]

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Image of :@WilliamBaude: Thoughts on property and positive law after the Carpenter oral argument – Ben Lee
:@WilliamBaude: Thoughts on property and positive law after the Carpenter oral argument – Ben Lee
on November 30, 2017 at 20:17:14 pm

And the Volokhians have a comment as well:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/11/30/thoughts-on-property-and-positive-law-after-the-carpenter-oral-argument/

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gabe
on December 07, 2017 at 04:34:51 am

You strongly sympathize with a bank robber? Warrant or no warrant, in this case too bad for Carpenter. There is real irony in the fact that Conservatives (and I generally consider myself one) love to tout how concealed carry will prevent or abort criminal acts but can't deal with the (apparently) seizure of some telephone records without a warrant. Anyway, where were the phone company's attorneys?

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Zeke

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.