The future of privacy rests on Justice Neil Gorsuch

Should the government need probable cause and a warrant to look at that information, to study your movements in detail, if you are ever suspected in a crime? Or must you sacrifice modernity’s indispensable communications tools in order to keep your constant whereabouts from the prying eyes of curious officialdom?

The Supreme Court sort of punted on that question this week in a case called Carpenter v. United States. To be sure, it did establish that a warrant will be required to view your location information in criminal trials, and that’s a good thing. But the court’s majority failed to provide good reasons for this limit on government prying. Its flimsy and arbitrary reasoning won’t long endure amid the forward rush of technology, and that’s a problem.

If there’s any hope for privacy in the future, the Supreme Court must revisit its big mistake in this area of law, its 1979 case, Smith v. Maryland. Because Smith will keep causing problems as technology advances until someone finally comes along and overturns it.

Smith advanced what was then a relatively young doctrine, that the Fourth Amendment doesn’t apply to what you share with a third party. The court found there was no need for a warrant to track the numbers that a defendant dialed on his home phone, because they were shared with the phone company.

In this new case, the majority shrugged off Smith. Justice Anthony Kennedy’s dissent leaned heavily on it. Only Justice Neil Gorsuch wanted to revisit Smith. But the court will have to do so eventually.

The problem is that Smith shows how terribly wrong the “third-party doctrine” really is. It means there is no such thing as a confidential relationship, a context in which you can comfortably share what we could think of as your private “papers” (as described in the Fourth Amendment) without inviting the government to look over your shoulder.

In his dissent in Smith, Justice Potter Stewart correctly recognized that the decision had no logical limiting principle. After all, if the government doesn’t need a warrant to get the numbers you dial just because they go to the phone company, then why should it need a warrant to listen to your conversation? After all, you have to share your voice over the line for the phone company to transmit it, don’t you?

At the time, the court’s majority slapped a Band-Aid over this gaping hole in its logic by drawing the arbitrary distinction that phone numbers are not private because — a big non-sequitur is coming here — the phone company needs them for practical purposes, such as routing your call and billing you.

But as Stewart noted, the phone numbers you dial contain all kinds of information that a normal person would consider both private and extremely sensitive. Did you call a psychiatrist? A secret lover? Fellow anti-Trump organizers? A well-known drug dealer?

The sloppy logic of the Smith court has festered for years and the infection presented itself again this week. If dialed numbers are fair game for government to peruse without warrant, why not the minute-by-minute pings that your cellphone is constantly sending to nearby towers? You need to transmit that information and give away your location to use data service and get updates to your email inbox, your weather app, the score of the Cubs game, etc. You chose to bring your phone with you and keep its data on, sharing everything you did and everywhere you went with your phone company. So, the principles used in Smith suggest no warrant should be required.

It’s probably for the best that a majority of justices refused to draw this logical conclusion. Unfortunately, though, they avoided the issue by creating yet another arbitrary distinction. Rather than question the court’s lousy precedent, the majority shrugged it off, asserting that the cell location data in question is just so much more sensitive than other kinds of personal information that the court cannot possibly apply its own precedents faithfully. Good luck extending that idea to future questions about tech and privacy.

This is why Justice Gorsuch finds in the majority opinion an “implicit but unmistakable conclusion that the rationale of Smith and Miller (a related 1976 case about the privacy of bank records) is wrong.” He is thus right to chastise the majority for “keep[ing] Smith and Miller on life support and supplement[ing] them with a new and multilayered inquiry.” As he puts it, “Why is someone’s location when using a phone so much more sensitive than who he was talking to (Smith) or what financial transactions he engaged in (Miller)? I do not know, and the court does not say.”

Gorsuch expresses sympathy for the outcome the majority reached. But he is unwilling to follow their rationale, and unable to follow a more logical path toward it because the litigants in Carpenter v. United States didn’t raise any of the arguments against Smith or Miller that would have been required.

Gorsuch goes on to outline a potential future approach to data privacy that is based on private property, which is how Fourth Amendment issues were traditionally handled before the court created the concept of “reasonable expectation of privacy.” In Carpenter, Gorsuch believes that the personal location data at issue could, based on existing law, be considered the property of individual cellphone users, and he offers a short explanation of how this legal argument would run. He concludes his dissent by implicitly encouraging future litigants to preserve such arguments by raising them in the lower courts next time.

What Carpenter proves is that the march of technology has rendered the Supreme Court’s recent Fourth Amendment jurisprudence useless and even more incoherent than it was before. If there is to be a technological future in which individuals have any confidence in privacy protections within the rule of law, it’s going to have to look like what Gorsuch described in Carpenter.

Given how much people today rely on data service, cloud computing, and innumerable future technological marvels that are sure to pose even more complicated problems, lawmakers must look for anything they can do to make sure the courts can get a better handle on this issue next time.