Why the Supreme Court’s geofence ruling doesn’t go far enough

The Supreme Court held today in Chatrie v. United States that the government conducted a search within the meaning of the Fourth Amendment when it acquired digital records about the cell phone location of a man accused of robbing a bank. This means that police generally need a warrant to obtain your location information from a service provider like Google. But what this means for other types of private information or media held digitally by countless service providers we rely upon daily is all but clear.

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At issue was whether law enforcement can use a “geofence warrant” to demand location information from Google about customers, here including Okello Chatrie, whose phones happened to be near a crime scene. The government’s answer: Yes, because once you share your location with Google, you have no Fourth Amendment interest in it and a warrant isn’t required anyway.

The Court disagreed. Privacy advocates are celebrating. But Justice Elena Kagan’s majority opinion missed the opportunity to declare that a person’s location data belongs to him, even if it is stored on the servers at a company like Google. upThe majority calls the records “his” freely, even likening them to Chatrie’s own emails and photos. What it refuses to do is let that ownership decide the case. And thus, the privacy test stays what it has been since 1967: whether “society” is prepared to recognize a person’s “expectation of privacy” as reasonable.

So the Court leaves unasked the questions its own possessives raise: Whose records are these, and what follows from that ownership?

After decades applying a Fourth Amendment doctrine that “protects people, not places,” the Court cannot cobble together a majority to name a person or a thing the Amendment protects. 

Chatrie is today’s chapter in the story of a mistake Americans first made in 1890. That’s when future Supreme Court Justice Louis Brandeis co-authored a Harvard Law Review article proposing a new “right to privacy” — “the right to be let alone.”

Many treat that article as the fountainhead of modern information privacy protection. Yet the opposite is true. Relying on the “right to privacy” has not provided more or better protection for privacy. Instead, it has obliterated protection for it, endangering the values — among them productivity, creativity, health, intimate relationships — that privacy enhances or makes possible.

Before 1890, privacy was protected by the common law. Not as a freestanding “right,” but as a by-product of others: property, contract, breach of confidence. If a stranger opened your mail, that was a trespass to your papers or effects. If your banker revealed your account information to the government without a warrant, that was a breach of your contract with him. 

You didn’t need a “right to privacy” to win these cases. You had something better: a right to the specific things being violated. Your contract, your letter.

“The right to be let alone” sounds appealing until you ask: let alone from what? By whom? Or until you try to decide when an individual’s interest in seclusion should yield to society’s interest in seeing, hearing or knowing. Brandeis only vaguely gestured at things “of public interest,” which judges must identify case by case according to their “individual judgment and opinion.”

This wasn’t a constitutional principle. It was an invitation to balance. And before long, the balancing ran amok.

The pivotal moment was 1967’s Katz v. United States, in which the Supreme Court replaced the traditional Fourth Amendment inquiry with a test asking whether one had a “reasonable expectation of privacy” — a demand for privacy that “society is prepared to recognize as reasonable.” This morphed the question of whether the Amendment is implicated from one of common-law principle to one about the opinions of “society.” Katz was a major coup for the pragmatist philosopher and psychologist William James’ view that the “essence of good is simply to satisfy demand” — i.e., opinions — and “the demand may be for anything under the sun.”

Once privacy depended on balancing demands rather than enforcing rights, the demands of the government — for security, efficiency, information — kept winning. In 1976, in United States v. Miller, the court held you have no Fourth Amendment interest in your bank records, because you “voluntarily” gave them to your bank. Then, in Smith v. Maryland, it said the same about the telephone numbers you dial. Together, these cases expanded the “third-party doctrine” beyond its original scope, without justification. According to the Court’s Miller and Smith rulings, once you share information with any “third party,” the government may demand it without a warrant.

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This doctrine wouldn’t survive the common-law approach, which treats the contracts with service providers as meaningful. Under the “reasonable expectation of privacy” test, by contrast, those contracts mean whatever judges think “society” thinks they should mean — which, it turns out, isn’t much.

This brings us back to Chatrie. The majority gestured at ownership without resting on it – calling Location History a “personal journal” the user “reasonably views as his own,” like his emails or calendar. The possessives did the persuading; the rule did not. The Court helped itself to property and contract concepts while denying them doctrinal status.

Justice Gorsuch’s concurrence supplied what the majority withheld. He named the sticks in the owner’s bundle – the password-protected account, the power to edit or delete at will, the right to exclude, Google’s own contract calling the data “your information” – and rested the result on them: Chatrie’s effects, held by Google on agreed terms, were searched. “[E]ntrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours.”: 

On that view, when the government demands a geofence search without a proper warrant, it isn’t merely asking Google for information Google happens to hold. It is demanding that Google breach its agreements with every user whose data the dragnet touches. That’s not something to be “balanced” against law enforcement convenience. It’s a trespass.

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Doesn’t privacy win either way? No, because a framework that produces occasional victories by judicial grace is not protection; it is weather. And a win that depends on what five justices believe society currently expects is a fair-weather friend. 

Brandeis’ “right to privacy” gave us decades of balancing tests, in which our security and privacy in our “persons, houses, papers, and effects” were weighed against the demands of “society.” And we, the people, lost, again and again.

The way forward isn’t another “win” based on “reasonable expectations.”. The way to legalize privacy is to return its legal protection to the foundations Brandeis abandoned, the ones the Chatrie majority leaned on but would not stand on: property and contract. When individuals exercise these rights to keep information private — even with “third party” assistance — government should get a warrant.

Amy Peikoff

Amy Peikoff is an attorney at Pacific Legal Foundation.