The New Supreme Court and the Fourth Amendment

Kavanaugh’s interpretation how the 4th Amendment applies to data could allow massive government overreach.

The Fourth Amendment states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

All the Constitutional Amendments are important but things like armed conflict with the Federal government and quartering of soldiers don’t actually come up that often. Searches and seizures of people’s property on the other hand, happen every day, all over the U.S., and are conducted by a wide variety of government agencies, for several different reasons. Ensuring the government only looks at and/or takes a person’s property under very limited circumstances is an essential check against the real threat of government overreach and abuse of power. So far the Fourth Amendment has worked fairly well. However, because it contains the subjective word “unreasonable” the effectiveness of the amendment is highly contingent on how it’s interpreted by the Courts.

The Supreme Court has already taken steps to weaken the Fourth Amendment in recent years. In 2015 the Court ruled 5 to 3 in the case of Utah v Strieff deciding that evidence found as the result of an illegal police stop could in fact be used against a suspect. This was a dramatic departure from previous interpretations of what evidence could and could not be used under the exclusionary rule, and it effectively gave law enforcement much more leeway to search people illegally. The three dissenting, or pro-Fourth Amendment Justices in that case were Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagen, with Clarence Thomas, John Roberts, Anthony Kennedy, Stephen Breyer, and Samuel Alito ruling for an interpretation that weakened the amendment.

When Neil Gorsuch was confirmed to the Court last year he brought with him an interpretation of the Fourth Amendment that is considered originalist. He holds that the Fourth Amendment should protect actual people and their actual property, as its original authors seemed to have intended. This is as opposed to a revised interpretation of the Fourth Amendment as more of a protection for the right to privacy, which has been used by Courts in some cases in recent decades. Justice Gorsuch also holds that a person’s digital information is property for legal purposes. He was very sure to make both these points in his dissent on Carpenter v United States last November. This was a complicated case that involved a number of overlapping legal questions. The final decision did set a precedent for more privacy in terms of certain types of digital data, but the Court’s majority decision did not enforce the idea that data is property.

When the next case on this issue comes up the newest Justice of the Supreme Court, Brett Kavanaugh, will get a chance to weigh in. As a lower Court Justice Kavanaugh’s stance on these issues has already caused concern among some civil liberties advocates. In several recent cases Kavanaugh has ruled against strong Fourth Amendment protection for digital information. One of the most notable is the 2013 case Klayman v Obama, which involved the government’s collection of digital metadata. In his decision, Kavanaugh questioned whether the collection of the data counted as a “search”, but then said that even if it is a search the “special need” to prevent terrorist attacks outweighs the “intrusion on individual liberty”. Whether or not the collection of the metadata prevented any terrorist attacks is up for debate. However, secretly accessing and storing citizens’ information and communication records without any probable cause or warrant certainly falls within what should be considered a search and seizure by the government. Kavanaugh’s view that collecting digital information doesn’t constitute a search would basically give the government carte blanche to engage in any and all kinds of electronic surveillance and information gathering, since there are no amendments protecting against digital non-searches.

The question of how the government legally defines and treats a person’s data and digital information is probably going to come back to the Supreme Court soon and it will have big impacts. Because of the Fourth Amendment American’s have an expectation of not having the Government arbitrarily access or seize things like their paperwork, their house, their car, or their money. But a person’s data can contain all their financial information; personal effects like photos; communication records of who they speak to, when and about what; detailed logs of where they’ve been, or where they’re planning to go; information about what they buy; and of course all kinds of other private information like political preferences. This type of property is at least as valuable as any physical effects, and just as dangerous if used against a person, so it would seem to warrant just as much protection from potential government abuse. But Americans will only get strong Fourth Amendment protections for their digital property, or any other kind of property, as long as the Supreme Court keeps it strong. With the Court’s current makeup, especially since the confirmation of Justice Kavanaugh that interpretation is far from assured.

Comments
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JP Mac
JP Mac

Editor

If it takes an effort beyond what anybody from the general public can do from their laptop to get the metadata information, that effort would and should constitute a search, and should be subject to a warrant. Then there's the fact that there's so much data, there's no practical way to search it. We get so little security in return for this loss of privacy as to make it not worth it. It's a facade made to make us feel safe.

Philip Carino
Philip Carino

Everyone focusing on the 2nd and Roe when here's another overlooked amendment that should concern all. Thanks to your article Alexis!

Jon Saltzman
Jon Saltzman

Editor

Alexis- I'll be watching for this and it is indeed a frightening prospect.