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Conservative originalists face a Fourth Amendment test

Wednesday, November 29, 2017

How should the Fourth Amendment's protections against unreasonable search and seizure apply to technology in the digital era, a time when we conduct so much of our lives through electronic devices?

Then-Judge Neil Gorsuch, a self-described originalist, answered a similar question at his confirmation hearing earlier this year about the Fourth Amendment, telling the U.S. Senate Judiciary Committee, "The technology changes, but the principles don't. And it can't be the case that the United States Constitution is any less protective of the people's liberties today than it was the day it was drafted."

Gorsuch was right, and he should bring just that frame of mind to a case to be argued this week at the Supreme Court: Carpenter v. United States.

If Gorsuch and the court's other conservatives adhere to the Constitution's text and history, they will follow the course set in recent cases and continue to align the Founders' concern for privacy with advances in technology.

At issue in this week's case is cellphone location data that was obtained by federal law enforcement officials without a warrant. Those officials wanted to learn where Timothy Carpenter was at the time certain robberies were committed in Ohio and Michigan, and to figure that out, they obtained records from his cellular service provider showing the movements of his cellphone. By examining those records, they were able to track Carpenter's whereabouts over a four-month period.

The question before the Supreme Court is whether, as Carpenter argues, the cell tower information was private and therefore law enforcement officials were required to show "probable cause" to obtain a warrant under the Fourth Amendment, or whether, as the government argues, the data were knowingly turned over to a third party - the cell service company - which would never trigger Fourth Amendment protection because Carpenter could not have had a "reasonable" expectation that his cell-location information would be private.

The Fourth Amendment, ratified in 1791, was prompted by the Founders' antipathy for "general warrants" that allowed British soldiers to search indiscriminately wherever and whenever they pleased. Such warrants  were "the worst instrument of arbitrary power," according to James Otis, the attorney who represented colonial merchants challenging them. They placed "the liberty of every man in the hands of every petty officer."

To prevent arbitrary searches, the Fourth Amendment guarantees "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures... and no Warrants shall issue, but upon probable cause...."

Although the Founders could not have anticipated cellphone technology, they would have recognized the dangers inherent in giving the government unlimited authority to search for evidence of criminal activity.

Today, ubiquitous personal electronic devices generate continuous records of their users' every move, fundamentally transforming the capacity of law enforcement to track and monitor people.

"What is troubling about life in our age of surveillance," law professor David Gray has written, "is the prospect of living in a world where each of us and all of us are subject to the constant and real threat of broad and indiscriminate surveillance."

Justice Sonia Sotomayor wrote in 2012, quoting an earlier case, that such surveillance by the government could "alter the relationship between citizen and government in a way that is inimical to democratic society."

Cell-location data can expose the most intimate details of a person's life, including relationships, hobbies, predilections, medical conditions, religious beliefs, and political pursuits. Because this information is constantly generated and can be retrieved by the government long after the activities such data memorialize have taken place, unfettered government access to this data raises the specter of general searches that our Founders so abhorred.

"The technology changes, but the principles don't." Then-Judge Gorsuch indeed spoke eloquently about how to apply the Fourth Amendment's 226-year-old text to today's challenges. Now Justice Gorsuch and his fellow conservatives face a test - the critical challenge of putting those words into action.