How should an originalist rule in the Fourth Amendment cell-site case?

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. I’ll then ask readers to weigh in on it.

Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Here’s the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

Here’s what  Scalia wrote in Carter, with emphasis in the original:

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” U. S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase “their … houses” in this provision is, in isolation, ambiguous. It could mean “their respective houses,” so that the protection extends to each person only in his own house. But it could also mean “their respective and each other’s houses,” so that each person would be protected even when visiting the house of someone else. As today’s opinion for the Court suggests, however, ante, at 88-90, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to “houses” without giving it the same interpretation with respect to the nouns that are parallel to “houses”—”persons, … papers, and effects”—which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

The founding-era materials that I have examined confirm that this was the understood meaning… . Like most of the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment, two used the same ambiguous “their” terminology. See Pa. Const., Art. X (1776) (“That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure …”); Vt. Const., ch. I, § XI (1777) (“That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure…”). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) (“Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions”); N. H. Const., § XIX (1784) (“Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions”).

The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman “a right to be secure from all unreasonable searches and seizures of his person his papers or his property,” 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freeman’s right against “unreasonable searches and seizures of his person, his papers and property,” id., at 968 (reproducing North Carolina proposed Declaration of Rights, 1778) (emphases added). There is no indication anyone believed that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word “his” rather than “their,” narrowed the protections contained in the Pennsylvania and Vermont Constitutions.

That “their … houses” was understood to mean “their respective houses” would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The people’s protection against unreasonable search and seizure in their “houses” was drawn from the English common-law maxim, “A man’s home is his castle.” As far back as Semayne’s Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176-177 (1797)), the King’s Bench proclaimed that “the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house.” 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K. B.).

Thus Cooley, in discussing Blackstone’s statement that a bailiff could not break into a house to conduct an arrest because “every man’s house is looked upon by the law to be his castle,” 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: “[I]t is the defendant’s own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose… .” 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) (“[I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every man’s house is his own castle, it is not the castle of another man”).

Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house “their” home when legal title is in the bank, when they rent it, and even when they merely occupy it rent free—so long as they actually live there. That this is the criterion of the people’s protection against government intrusion into “their” houses is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the “inviolability of dwelling-houses” described by Foster, Hale, and Coke extends to “the occupier or any of his family … who have their domicile or ordinary residence there,” including “a boarder or a servant” “who have made the house their home.” Id., at 523 (emphasis added). But, it added, “the house shall not be made a sanctuary” for one such as “a stranger, or perhaps a visitor,” who “upon a pursuit, take[s] refuge in the house of another,” for “the house is not his castle; and the officer may break open the doors or windows in order to execute his process.” Ibid. (emphasis in original).

Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in Chapman v. United States, 365 U. S. 610 (1961), that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in Bumper v. North Carolina, 391 U. S. 543 (1968), that an unreasonable search of a grandmother’s house violated her resident grandson’s Fourth Amendment rights because the area searched “was his home,” id., at 548, n. 11 (emphasis added). We went to the absolute limit of what text and tradition permit in Minnesota v. Olson, 495 U. S. 91 (1990), when we protected a mere overnight guest against an unreasonable search of his hosts’ apartment.

I think we can all agree that the cellphone company’s records of which of its cell towers were associated with its customer’s phone at some point in the past are, in the abstract, “papers” or “effects.” I would think that an originalist would then want to ask the Carter question: Whose papers or effects are they? Presumably they are the “papers” or “effects” of the phone company. But are they also the “papers” or “effects” of the customer?

The idea of papers and effects presumably was understood to include situations such as Entick v. Carrington (1765), the case that helped inspire the Fourth Amendment’s enactment, in which the king’s officials broke into Entick’s home. Inside the home, the officials removed “all the private papers, books, etc. of the plaintiff there found, … and took and carried away 100 printed charts, 100 printed pamphlets, etc. etc. of the plaintiff there found, and other 100 charts etc etc took and carried away.” In that setting, papers and effects likely meant something like a person’s private property. Indeed, the first draft of the Fourth Amendment used “property” instead of “effects.”

The question is, can cell-site records be the user’s own papers or effects? It seems like an uphill battle. Cell-site records are a phone company’s internally generated records of how its network connected a communication between a customer and someone else. Cellphone customers don’t know what cell towers their phones are connecting to, or where the towers are located. They don’t know what the phone company’s records say. That’s information that the phone company generates describing how its own network service operated that the phone company keeps in the ordinary course of its business. Whether those records are retained, and for how long, is up to the phone company. It’s the phone company’s business and its network, and users wouldn’t see or access the records that the phone company creates and stores.

Given that, to say that cell-site records belong to the user — that they are the user’s papers or effects — you would need some kind of theory by which a person has some kind of property or property-like rights in another person’s records of what they did on your behalf.

There are ways to get there, but I’m not aware of any of those theories being recognized in the past — much less the late 18th century. For example, one option would be to look to contract law or agency law. Perhaps signing the agreement makes the phone company the agent of the user, such that the phone company is working for the user and its company records belong, at least in some sense, to the user. This is creative, but at least at this point I don’t see support for this theory in the historical caselaw or other materials.

I’d be happy to be corrected, but I’m not aware of an early court or even just a litigant suggesting that the contractual or agency relationship made the provider’s records in some sense the customer’s own, triggering the Fourth Amendment, its state equivalents, or common law search and seizure principles. There presumably were situations in the 18th or 19th century in which two parties would enter into a contractual agreement and the government would want records or testimony from the provider of those goods or services concerning what the recipient of the goods or service had done. A possibly interesting example is hotel guest lists, which are at least somewhat analogous to cell-site records — records by a business of who was using a particular service and when. My understanding is that hotel guest lists were traditionally left open to inspection by anyone. See Jefferson Williamson, “The American Hotel: An Anecdotal History” 181 (1930). The records apparently weren’t considered the guest’s own papers, even though they were created in the course of providing a service to the guest.

It would be a different case, I think, with the contents of communications. In the case of contents, the network provider is merely holding the private communications of the user on the user’s behalf. The communications are still the user’s communications. The user wrote them, or, on receipt, received them. If I decide to store my emails on Gmail’s servers, for example, they are still my emails, just as my letters are still my letters when I send them through the postal mail. See Ex Parte Jackson, 96 US 727, 733 (1877) (“Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.”).

If I’m right, an originalist might plausibly conclude that the contents of communications are protected by the Fourth Amendment as the user’s “papers” or “effects” but that the business records of the company as to how those papers or effects were delivered would be the company’s records, not the user’s.

Anyway, that’s my tentative thinking. I’m very interested to know whether readers who are interested in originalism find this thinking persuasive. And my apologies in advance if I have offered a wrong or naive view of originalism. It sometimes seems that one must be a sophisticated theorist of originalism to truly understand what originalism means, and I admit I am only a simple country Fourth Amendment lawyer.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/how-should-an-originalist-rule-in-the-fourth-amendment-cell-site-case/

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