SCOTUS and the Spy in Your Pocket

For many of us, the information we carry around on a smart phone is the Rosetta Stone to decipher our lives. Our appointments, personal and business contacts, notes, favorite tunes, photographs, and many more windows into the inner recesses of our lives and livelihoods can be found there.

Besides the incredibly personal and valuable information inside our smart phones, our cell phone service providers have plenty of our valuable information, such as with whom we have spoken and even a record of our locations. And under present law, police and prosecutors don’t need a warrant issued after probable cause to obtain it from those companies and look at it.

The Supreme Court recently heard oral argument in Carpenter v. U.S. about whether the Fourth Amendment protects cell phone data held by the phone companies.  The case has potentially major implications for privacy in the digital age.

Over at the Law & Liberty blog, esteemed originalist Professor Mike Rappaport addresses the key Fourth Amendment issue of the day in his piece “The Original Meaning and the Carpenter Case: Congress’s Protection of Customer Information.” He writes:

Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect.  A paper would refer to the actual physical piece of paper, not the information contained on it.  An effect would refer to personal property or movables that a person can carry on their person.  In neither case would the “information” be a paper or effect.  Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself…. Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.

Let me offer a perspective of why information should be treated as an effect under original meaning of the Fourth Amendment.

First, the value of the right of security in papers is not merely in the physical piece of paper itself.  In Entick v.Carrington from 1765, English Chief Justice Pratt wrote that “[p]apers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection.”  The papers at issue in that search were not the sheets being stored waiting for John Entick to print his newspaper, the Monitor.  The seizure of Entick’s papers for inspection was precisely for the information contained in them.  And, can there be any doubt that King Charles I ordered the seizure of Sir Edward Coke’s papers in 1632, delaying publication of the final volumes of his famous Institutes, because of the information contained in them?

The Framers understood that the search and seizure of papers was always about the information; paper was merely the medium of the time.  In other words, the physical piece of paper protected by the right of security has its true value under the Fourth Amendment because of the information on it.  A decent and proper analogy is the First Amendment freedom of the press.  That freedom was about the right to publish and promulgate.  This right was naturally and seamlessly extended to the broadcast media, and was not reserved to print media under the 1791 usage of the term “the press.”

But the Carpenter case is about information.  Can that be considered an “effect?”

Here is a good example of why information should be considered an effect, and even in context of possession by third parties.  In my wallet, I carry a small piece of paper with the code to the door of my business office.  The code is of course a substitute for an office key, which would have been the method of access in 1791.  A key may be carried on one’s person, and would certainly be an effect under anyone’s understanding of original meaning.

The property value of that scrap of paper in my wallet is not the paper itself; the value of that paper is the information.  

Just as my employer owned the key I was given before installation of a coded door to our offices, my employer owns the code.  And just as I have needed to chastise others about severe consequences for passing out the code to temporary workers, the company property in that substitute key -- the code, in this case -- is given to certain people, but only with knowing consent of the owner.

If the government were to demand without a warrant that I provide it the information that is the code, that is no different than the government demanding that I fork over the key to my employer’s offices.  Information in this example is the effect for Fourth Amendment purposes.

John Adams’s 1780 Massachusetts precursor to the Fourth Amendment used the word “possessions” instead of “effects.” Adams’s version, notes Fourth Amendment scholar William Cuddihy, was the first to use the term “unreasonable,” as in “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

Use of examples such as my door code sometimes don’t perfectly articulate constitutional principles, but it is also true that original meaning of the Constitution can or should apply to today’s technology and media.  Professor Rappaport is a wonderful originalist and his view, which is shared by other originalists, may prevail.  Information, though, is as dear and valuable as any paper or other possession, and seems to be compatible with the original meaning of effect.

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