On June 22, 2018, the United States Supreme Court ruled that obtaining cell-site location information without a probable cause warrant violates the Fourth Amendment despite the fact there were no actual associated property rights in the data.   In writing for the majority, Chief Justice Roberts sided with the liberal wing of the Court and against those Justices looking to affirm the robbery conviction in question.  Justice Gorsuch’s Dissent correctly points out, however, that the “most promising line of argument” available to Carpenter was not well-developed by Carpenter, namely that he had positive property rights in his geo-location data.  Gorsuch, J., Dissent at 21.   Instead, the Majority ruled there was a reasonable expectation of privacy in the data in question despite the lack of any available property rights.

This decision could have been a potential clarion call regarding privacy rights well beyond that found in a Fourth Amendment context.  Instead of confirming the data’s true value – again, as a positive property right, the Majority determined that a third-party’s access and consent to use the data in question did not negate the data’s ability to give rise to a reasonable expectation of privacy – in effect, carefully distinguishing the so-called third party doctrine previously applied by the Court.  In so doing, the Majority carefully parsed precedent on this issue – now giving it a second tier analysis status, rather than outright reject it as apparently sought by Justice Gorsuch in his Dissent.  Gorsuch, J., Dissent at 5 – 8.

Recognizing the contortions taken by the Majority, Justice Alito fairly screamed for Congressional intervention given this perceived affront to existing Fourth Amendment precedent.  Alito, J., Dissent at 27 (“Legislation is much preferable to the development of an entirely new body of Fourth Amendment caselaw for many reasons, including the enormous complexity of the subject, the need to respond to rapidly changing technology, and the Fourth Amendment’s limited scope.”).

On April 17, 2018, the Court previously dismissed another matter involving application of the Stored Communications Act and “rapidly changing technology” given Congressional intervention on the issue rendered moot the question before the Court.  Given that the Carpenter Majority’s Constitutional analysis may leave little room for future Congressional intervention, subsequent courts will have to grapple with deciphering the potential import of this decision – a decision with a remarkable four separately written dissents.

For example, what exactly constitutes a “a comprehensive chronicle” of defendant’s past movements or how will heretofore unknown future non-property “privacy rights” give rise to a reasonable expectation of privacy?  Justice Gorsuch was correctly very much concerned about the uncertainty springing from this decision.  See Gorsuch, J., Dissent at 12 (“In the end, our lower court colleagues are left with two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition.”).

Despite how the Court in Carpenter references location-based tracking as some sort of newfound innovation, location-based tracking has been a percolating privacy issue for more than seven years.  To that end, even though privacy advocates and criminal defense lawyers may very well bask in this decision for years to come, by the Court not clearly ruling how certain privacy rights can give rise to a positive property right under the Fourth Amendment, privacy advocates may have actually lost a more impactive battle they could have won.

More specifically, if the ACLU – on behalf of Mr. Carpenter, had fully argued the more appropriate positive law approach discussed by  Justice Gorsuch we may all be reading a 6-3 decision that found privacy rights in data can indeed give rise to property rights under the Fourth Amendment.  Gorsuch, J., Dissent at 21 (“Before the district court and court of appeals, Mr. Carpenter pursued only a Katz“reasonable expectations” argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude — reluctantly — that Mr. Carpenter forfeited perhaps his most promising line of argument.”).  For now, privacy advocates will have to be satisfied with the actual ruling before them – one that leaves the door quite open to future expansions of the “reasonable expectation of privacy”.