Communications and Data Meet the Fourth Amendment

This week and last, the Cato Institute filed amicus briefs urging the Supreme Court to take up two cases dealing with the constitutional status of “cell site location information,” or “CSLI.” This data, collected of necessity by cellular communications providers, creates detailed records of their customers’ movements. The briefs invite the Court to accept these cases so it can revise Fourth Amendment practice to eschew doctrine and more closely adhere to the language of the Fourth Amendment.

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Presumably, when called upon to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of “their persons, houses, papers, [or] effects”? Was any such search or seizure reasonable?

And in cases involving familiar physical objects, courts usually do a sound textual analysis, at least implicitly. But in harder cases dealing with unfamiliar items such as communications and data, courts retreat to “reasonable expectation of privacy” doctrine that emerged from Katz v. United States in 1967, and offshoots of it like the “third-party doctrine.” The “reasonable expectation of privacy” test asks whether defendants’ feelings about things government agents accessed were reasonable. The corollary “third-party doctrine” cancels Fourth Amendment interests in information and things that are shared on the theory that expectations of privacy evaporate in that context.

The “reasonable expectation of privacy” test is the product of one non-essential concurrence in Katz, and the third-party doctrine was wrong when the Supreme Court created it in 1976 to ratify a law that deputized banks into financial surveillance. That doctrine grows further out of synch with each step forward our society takes in modern, connected living. Today, third-party service providers collect incredibly deep reservoirs of information about us: Cellular telephone networks, Internet service providers, search engines, and payment systems have data that can throw open windows onto our relationships, feelings, health conditions, business dealings, sexuality, emotions, and more.

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