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U.S. Constitution
See other U.S. Constitution Articles

Title: Huge Win for Everyone With a Cellphone (and for the Fourth Amendment) at the Supreme Court
Source: Reason
URL Source: https://reason.com/blog/2018/06/22/ ... ects-warrantless-tracking-of-c
Published: Jun 22, 2018
Author: Damon Root
Post Date: 2018-06-23 09:11:00 by Deckard
Keywords: None
Views: 147
Comments: 18

SCOTUS rejects warrantless cellphone location tracking in Carpenter v. United States.

In a blockbuster 5-4 decision issued today, the U.S. Supreme Court ruled that warrantless government tracking of cellphone users via their cellphone location records violates the Fourth Amendment. "A person does not surrender all Fourth Amendment protection by venturing into the public sphere," declared the majority opinion of Chief Justice John Roberts. "We decline to grant the state unrestricted access to a wireless carrier's database of physical location information."

The case is Carpenter v. United States. It arose after the after FBI obtained, without a search warrant, the cellphone records of a suspected armed robber named Timothy Carpenter. With those records, law enforcement officials identified the cell towers that handled his calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court.

The central issue in the case was whether Carpenter had a "reasonable expectation of privacy" in the information contained in those records, or whether he had forfeited such privacy protections by voluntarily sharing the information with his cellular service provider. As the Supreme Court put it in United States v. Miller (1976) and Smith v. Maryland (1979), "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

In his ruling today, Chief Justice Roberts "decline[d] to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection." He continued: "Whether the Government employs its own surveillance technology…or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]."

Roberts' opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Anthony Kennedy filed a dissent, joined by Justices Clarence Thomas and Samuel Alito. Alito also filed a dissent, which Thomas joined. Thomas also filed a dissent of his own. Justice Neil Gorsuch dissented alone too.

Kennedy, joined by Thomas and Alito, complained that "the Court's stark departure from relevant Fourth Amendment precedents and principles…places undue restrictions on the lawful and necessary enforcement powers exercised not only by the Federal Government, but also by law enforcement in every State and locality throughout the Nation." In their view, the Court should have followed its precedents in Miller and Smith and held that "individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party." Cellphone records, they maintain, "are no different from the many other kinds of business records the Government has a lawful right to obtain by compulsory process."

Justice Neil Gorsuch struck an entirely different note in his lone dissent. Indeed, his dissent reads much more like a concurrence. It seems clear that while Gorsuch agreed with the majority that Carpenter deserved to win, he strongly disagreed with them about how the win should have happened.

"I would look to a more traditional Fourth Amendment approach," Gorsuch wrote. "The Fourth Amendment protects 'the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.' True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment." Furthermore, Gorsuch wrote, "it seems to me entirely possible a person's cell-site data could qualify as his papers or effects under existing law."

"I cannot fault" the majority "for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that," Gorsuch explained. "At the same time, I do not agree with the Court's decision today to keep Smith and Miller on life support." In other words, Gorsuch would scrap these third-party precedents and have the Court start adhering to an originalist, property rights-based theory of the Fourth Amendment. That's how Gorsuch wanted Carpenter to win.

The importance of today's ruling in Carpenter v. U.S. should not be underestimated. Both the majority opinion and Gorsuch's dissent raise questions about the future viability of two key Fourth Amendment precedents. What is more, the decision itself represents a massive win for Fourth Amendment advocates. Carpenter may well be remembered as the most significant decision issued this term.

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#1. To: Deckard (#0)

It arose after the after FBI obtained, without a search warrant, the cellphone records of a suspected armed robber named Timothy Carpenter.

Ruthless thugs usurping the US Constitution again.

buckeroo  posted on  2018-06-23   9:45:04 ET  Reply   Trace   Private Reply  


#2. To: buckeroo, Deckard, Gorsuch wrong again (#1)

Ruthless thugs usurping the US Constitution again.

Gorsuch is on the wrong side, again. First he's for internet taxes, and now the big brother police state surveillance, in spite of his 4th amendment based dissent.

He's right in his reasoning about cell phone data being yours and being covered by the 4th, but he nonetheless voted wrong.

hondo68  posted on  2018-06-23   10:23:12 ET  Reply   Trace   Private Reply  


#3. To: hondo68 (#2)

First he's [Gorsuch] for internet taxes

You and many of us have known for about 30 years that eventually taxes will be collected and paid for commerce based on Internet transactions.

Its official now.

buckeroo  posted on  2018-06-23   10:47:03 ET  Reply   Trace   Private Reply  


#4. To: hondo68 (#2)

He's right in his reasoning about cell phone data being yours and being covered by the 4th, but he nonetheless voted wrong.

I agree completely, and am puzzled as to why he was not counted with the majority. Is it because he simply didn't agree with the opinion written by them? Seems this was really a 6-3 decision.

Gorsuch's reasoning is the one that is most right.

It reminds me of the old days when law enforcement needed a warrant to wiretap analog land line telephones. The Fourth Amendment applied there even though the equipment was not owned by the person being wire tapped. Gorsuch is essentially doing nothing more than extending that same principle to cell phones.

Courts need to recognize when modern, common standards of life change with technology.

Pinguinite  posted on  2018-06-23   11:26:03 ET  Reply   Trace   Private Reply  


#5. To: buckeroo (#3)

You and many of us have known for about 30 years that eventually taxes will be collected and paid for commerce based on Internet transactions.

Its official now.

And Amazon is the chief beneficiary. On top of their special shipping deals with the USPS (unless Trump has killed that), they have a serious advantage over smaller competition.

Pinguinite  posted on  2018-06-23   11:28:11 ET  Reply   Trace   Private Reply  


#6. To: Pinguinite (#5)

And Amazon is the chief beneficiary.

You gotta be kidding yourself. If taxes are levied, Amazon must comply as any worthy commerce effort. There is no benefit for any Internet company. Taxes are mere added costs to the balance sheet that drives the price UP!

buckeroo  posted on  2018-06-23   12:06:24 ET  Reply   Trace   Private Reply  


#7. To: buckeroo (#6)

You gotta be kidding yourself. If taxes are levied, Amazon must comply as any worthy commerce effort.

State sales taxes are already collected by Amazon for most every state, as they already have a physical presence in most states, being the big corporation they are, so this ruling doesn't affect them much. Who's affected are the smaller shippers that only have a presence in a single state. Their customer costs will go up as they'll need to pay their state taxes where they did not before.

At least that's my understanding.

Pinguinite  posted on  2018-06-23   12:12:07 ET  Reply   Trace   Private Reply  


#8. To: Pinguinite (#7)

All you suggested is that Amazon has been in compliance before the recent US Supreme Court ruling.

To me, they make no more money as you suggested earlier.

buckeroo  posted on  2018-06-23   12:16:57 ET  Reply   Trace   Private Reply  


#9. To: buckeroo (#8)

To me, they make no more money as you suggested earlier.

But their competition now loses their advantage, which helps Amazon. And if they do have a unfair favorable shipping deal with USPS, then....

Pinguinite  posted on  2018-06-23   12:21:24 ET  Reply   Trace   Private Reply  


#10. To: Pinguinite (#9)

I doubt that many business(es) take into account compliance considerations into and about their business plans.

The eventual FACTOID: PAY!

buckeroo  posted on  2018-06-23   12:32:27 ET  Reply   Trace   Private Reply  


#11. To: Pinguinite (#4) (Edited)

Gorsuch could have been included in the majority opinion, but with disclaimers included for the parts that he didn't agree with. I believe that this has been done fairly often before?

Basically individual dissenting opinions (exclusions) within the text of the majority opinion, while yet agreeing with the verdict.

hondo68  posted on  2018-06-23   13:00:10 ET  Reply   Trace   Private Reply  


#12. To: Nolu chan (#0)

Nolu should come in with something scholarly, I'll state it in plain English.

A justice is with or against the majority solely based on one single word: Upheld, or Not.

The long and winding opinions that explain the justices' reasoning are dicta (individually dictum) - they are not the holding, they are literal opinions. Dictum is not law. Only the holding is law.

Of course, Supreme Court justices never retire, and only die rarely, so when a Justice writes his or her opinion and states the logic by which s/he decided the case, that logic isn't law, but it sure is a good guide to what s/he will probably say the next time a case like that is presented. That Justice is now much more predictable on an issue.

Gorsuch voted with the minority to either uphold or overturn the original decision - they did not give enough data to tell us what the actual HOLDING was (upheld, reversed?) - so he is properly counted with the other justices who so held, even though his obiter dictum was different in its logic than theirs.

Vicomte13  posted on  2018-06-23   13:10:28 ET  Reply   Trace   Private Reply  


#13. To: Vicomte13 (#12)

they did not give enough data to tell us what the actual HOLDING was (upheld, reversed?)

So dumbshit. the USSC should not have accepted the case, must less the adjudication.

But, despite your esteemed concepts .. they diametrically chose to decide contrary to your opinion.

buckeroo  posted on  2018-06-23   13:19:33 ET  Reply   Trace   Private Reply  


#14. To: Vicomte13, Pinguinite, buckeroo, Nolu chan (#12) (Edited)

Before the district court and court of appeals, Mr. Carpen-ter pursued only a Katz “reasonable expectations” argu-ment. He did not invoke the law of property or any analo-gies 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 tothose supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter for-feited perhaps his most promising line of argument. Unfortunately, too, this case marks the second time thisTerm that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd , 584 U. S., at ___ (slip op., at 7). Litigantshave had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments likethese may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments havegone unmade, leaving courts to the usual Katz hand- waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.

www.cnet.com/news/supreme...-for-phone-location-data/ (Last page of the Gorsuch dissent, #119)

I can't get the SCRIBD to embed, but Gorsuch's dissent is based on the fact that Carpenter's lawyers didn't make the right argument in court, as far as I understand it. Couldn't the dumbass Gorsuck have taken "judicial notice" and voted with the majority, instead of blaming his stupid decision on the lawyers?

Don't see any tally of upheld vs reversed.

hondo68  posted on  2018-06-23   13:59:01 ET  Reply   Trace   Private Reply  


#15. To: buckeroo (#13) (Edited)

But, despite your esteemed concepts .. they diametrically chose to decide contrary to your opinion.

I agree with the decision.

Vicomte13  posted on  2018-06-23   16:36:34 ET  Reply   Trace   Private Reply  


#16. To: buckeroo (#3)

You and many of us have known for about 30 years that eventually taxes will be collected and paid for commerce based on Internet transactions.

Using what as justiication for the tax? Because they can?

misterwhite  posted on  2018-06-24   10:16:02 ET  Reply   Trace   Private Reply  


#17. To: Deckard (#0)

or whether he had forfeited such privacy protections by voluntarily sharing the information with his cellular service provider.

First of all, I don't recall voluntarily sharing anything with my cellular service provider. I agreed to pay them a certain amount every month in return for cellular service. If they are collecting and storing my location data, it is without my knowledge or permission.

Second, if my cellular service provider needs to collect and store my location data for internal business reasons, then I expect that data to remain internal and confidential, not shared with anyone who asks.

Third, I have a right to know who asks for that data. That's an invasion of my privacy.

Lastly, to avoid confusion and misunderstanding, contracts should clearly state that I must authorize, in writing, any disclosure of any information to anyone.

misterwhite  posted on  2018-06-24   10:37:14 ET  Reply   Trace   Private Reply  


#18. To: hondo68, Pinguinite (#11)

[hondo68 #2] Gorsuch is on the wrong side, again. First he's for internet taxes, and now the big brother police state surveillance, in spite of his 4th amendment based dissent.

He's right in his reasoning about cell phone data being yours and being covered by the 4th, but he nonetheless voted wrong.

- - - - - - - - - -

[Pinguinite #4:] I agree completely, and am puzzled as to why he was not counted with the majority.

- - - - - - - - - -

[hondo68 #11] Gorsuch could have been included in the majority opinion, but with disclaimers included for the parts that he didn't agree with. I believe that this has been done fairly often before?

Basically individual dissenting opinions (exclusions) within the text of the majority opinion, while yet agreeing with the verdict.

- - - - - - - - - -

[hondo68 #14] Couldn't the dumbass Gorsuck have taken "judicial notice" and voted with the majority, instead of blaming his stupid decision on the lawyers?

Don't see any tally of upheld vs reversed.

- - - - - - - - - -

Gorsuch dissented from the majority and cannot be included with them. The decision was 5-4.

Roberts, Ginsburg, Breyer, Sotomayor and Kagan were the majority.

Kennedy, Thomas, Alito and Gorsuch dissented.

Carpenter v. United States, S. Ct. 16-402, 585 U.S. ___ (22 Jun 2018)

Syllabus at 4:

ROBERTS, C. J., delivered the opinion of the Court, in which GINS­BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

KENNEDY, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. GORSUCH, J., filed a dissenting opinion.

Opinion of the Court at 22:

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Gorsuch disagreed with the legal reasoning of the majority and felt he could not join the majority and support that legal reasoning.

Gorsuch explored a different line of legal reasoning upon which he could have reached the same result as the majority (reversing the Circuit Court), but he could not concur with the majority based on that legal reasoning because it was not available to him. Carpenter did not preserve such an argument in the course of the litigation and forfeited it. As Carpenter did not argue that line of reasoning, the Government did not defend against it, indeed had no cause or opportunity to defend against it. Gorsuch cannot uphold an argument that was not thoroughly argued in the courts below. He can only point out that it was an avenue that could have been pursued. Gorsuch is practically begging lawyers in future cases to not ignore and forfeit the traditional argument.

GORSUCH, dissenting at 5-6:

What if we dropped Smith and Miller’s third party doctrine and retreated to the root Katz question whether there is a “reasonable expectation of privacy” in data held by third parties? Rather than solve the problem with the third party doctrine, I worry this option only risks returning us to its source: After all, it was Katz that produced Smith and Miller in the first place.

Katz’s problems start with the text and original under­standing of the Fourth Amendment, as JUSTICE THOMAS thoughtfully explains today. Ante, at 5–17 (dissenting opinion). The Amendment’s protections do not depend on the breach of some abstract “expectation of privacy” whose contours are left to the judicial imagination. Much more concretely, it protects your “person,” and your “houses, papers, and effects.” Nor does your right to bring a Fourth Amendment claim depend on whether a judge happens to agree that your subjective expectation to privacy is a “reasonable” one. Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.

GORSUCH, dissenting at 7:

Even taken on its own terms, Katz has never been suffi­ciently justified. In fact, we still don’t even know what its “reasonable expectation of privacy” test is.

GORSUCH, dissenting at 8:

When judges abandon legal judgment for political will we not only risk decisions where “reasonable expectations of privacy” come to bear “an uncanny resem­blance to those expectations of privacy” shared by Mem­bers of this Court. Minnesota v. Carter, 525 U. S. 83, 97 (1998) (Scalia, J., concurring). We also risk undermining public confidence in the courts themselves.

GORSUCH, dissenting at 12:

From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expecta­tions or privacy. It was tied to the law. Jardines, 569 U. S., at 11; United States v. Jones, 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the tradi­tional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz’s shadow, this traditional understanding persists. Katz only “supple­ments, rather than displaces the traditional property-based understanding of the Fourth Amendment.” Byrd, 584 U. S., at ___ (slip op., at 7) (internal quotation marks omitted); Jardines, supra, at 11 (same); Soldal v. Cook County, 506 U. S. 56, 64 (1992) (Katz did not “snuf[f] out the previously recognized protection for property under the Fourth Amendment”).

Beyond its provenance in the text and original under­standing of the Amendment, this traditional approach comes with other advantages. Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretionin Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.

GORSUCH, dissentng at 16:

Another point seems equally true: just because you have to entrust a third party with your data doesn’t necessarily mean you should lose all Fourth Amendment protections in it. Not infrequently one person comes into possession of someone else’s property without the owner’s consent. Think of the finder of lost goods or the policeman who impounds a car. The law recognizes that the goods andthe car still belong to their true owners, for “where a person comes into lawful possession of the personal prop­erty of another, even though there is no formal agreement between the property’s owner and its possessor, the pos­sessor will become a constructive bailee when justice so requires.” Christensen v. Hoover, 643 P. 2d 525, 529 (Colo.1982) (en banc); Laidlaw, Principles of Bailment, 16 Cor­nell L. Q. 286 (1931).

Basically, a bailment occurs when a bailor entrusts personal property to a bailee, who assumes custody of the property and a duty to exercise due care. Example: hat check or coat check. They just hold your hat/coat for you until you leave.

GORSUCH, dissenting at 20:

What does all this mean for the case before us? To start, I cannot fault the Sixth Circuit for holding that Smith and Miller extinguish any Katz-based Fourth Amendment interest in third party cell-site data. That is the plain effect of their categorical holdings. Nor can I fault the Court today for its implicit but unmistakable conclusion that the rationale of Smith and Miller is wrong; indeed, I agree with that. The Sixth Circuit was powerless to say so, but this Court can and should. At the same time, I do not agree with the Court’s decision today to keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared. Returning there, I worry, promises more trouble than help.

GORSUCH, dissenting at 20-21:

Our case offers a cautionary example. It seems to me entirely possible a person’s cell-site data could qualify as his papers or effects under existing law. Yes, the tele­phone carrier holds the information. But 47 U.S.C. §222 designates a customer’s cell-site location information as “customer proprietary network information” (CPNI), §222(h)(1)(A), and gives customers certain rights to control use of and access to CPNI about themselves. The statute generally forbids a carrier to “use, disclose, or permit access to individually identifiable” CPNI without the customer’s consent, except as needed to provide the cus­tomer’s telecommunications services. §222(c)(1). It also requires the carrier to disclose CPNI “upon affirmative written request by the customer, to any person designated by the customer.” §222(c)(2). Congress even afforded customers a private cause of action for damages against carriers who violate the Act’s terms. §207. Plainly, cus­tomers have substantial legal interests in this infor­mation, including at least some right to include, exclude, and control its use. Those interests might even rise to the level of a property right.

The problem is that we do not know anything more. 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 tothose supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter for­feited perhaps his most promising line of argument.

Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd, 584 U. S., at ___ (slip op., at 7). Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments likethese may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments havegone unmade, leaving courts to the usual Katz hand-waving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Griswold v. Connecticut, 381 U.S. 479 (1965)

Griswold introduced the hitherto unknown Due Process Clause constitutional privacy rights which emanated from the penumbras of the Bill of Rights. Nobody is quite certain of where the penumbras are located, but the privacy emanations are broad enough to cover the sale of condoms, and elastic enough to stretch out and cover search and seizure and abortion.

Griswold, Opinion of the Court at 481:

We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship.

Griswold, Opinion of the Court at 481-82:

Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. ... We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.

Griswold, Opinion of the Court at 484:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U. S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Griswold, Opinion of the Court at 485:

We have had many controversies over these penumbral rights of "privacy and repose." ... The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

Griswold, Opinion of the Court at 486:

We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Reversed

Griswold, BLACK Dissenting opinion (joined by Stewart) at 507:

I agree with my Brother STEWART'S dissenting opinion. And like him I do not to any extent whatever base my view that this Connecticut law is constitutional on a belief that the law is wise or that its policy is a good one. In order that there may be no room at all to doubt why I vote as I do, I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority and my Brothers HARLAN, WHITE and GOLDBERG who, reciting reasons why it is offensive to them, hold it unconstitutional. There is no single one of the graphic and eloquent strictures and criticisms fired at the policy of this Connecticut law either by the Court's opinion or by those of my concurring Brethren to which I cannot subscribe—except their conclusion that the evil qualities they see in the law make it unconstitutional.

Griswold, BLACK Dissenting opinion (joined by Stewart) at 508-10:

The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with resp'ect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.

One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. This fact is well illustrated by the use of the term "right of privacy' as a comprehensive substitute for the Fourth Amendment's guarantee against "unreasonable searches and seizures." "Privacy" is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language 6f the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. ... For these reasons I get nowhere in this case by talk about a constitutional "right of privacy" as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court's judgment and the reasons it gives for holding this Connecticut law unconstitutional.

Griswold, BLACK Dissenting opinion (joined by Stewart) at 511-12:

The due process argument which my Brothers HARLAN and WHITE adopt here is based, as their opinions indicate, on the premise that this Court is vested with power to invalidate all state laws that it considers to be arbitrary, capricious, unreasonable, or oppressive, or on this Court's belief that a particular state law under scrutiny has no "rational or justifying" purpose, or is offensive to a "sense of fairness and justice." If these formulas based on "natural justice," or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body. Surely it has to be admitted that no provision of the Constitution specifically gives such blanket power to courts to exercise such a supervisory veto over the wisdom and value of legislative policies and to hold unconstitutional those laws which they believe unwise or dangerous.

Griswold, BLACK Dissenting opinion (joined by Stewart) at 511-12:

While I completely subscribe to the holding of Marbury v. Madison, 1 Cranch 137, and subsequent cases, that our Court has constitutional power to strike down statutes, state or federal, that violate commands of the Federal Constitution, I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of "civilized standards of conduct." Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or what not to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination—a power which was specifically denied to federal courts by the convention that framed the Constitution.'

Griswold, STEWART Dissenting opinion (joined by Black) at 527-529:

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

In the course of its opinion the Court refers to no less than six Amendments to the Constitution: the First, the Third, the Fourth, the Fifth, the Ninth, and the Fourteenth. But the Court does not say which of these Amendments, if any, it thinks is infringed by this Connecticut law.

We are told that the Due Process Clause of the Fourteenth Amendment is not, as such, the "guide" in this case. With that much I agree. There is no claim that this law, duly enacted by the Connecticut Legislature, is unconstitutionally vague. There is no claim that the appellants were denied any of the elements of procedural due process at their trial, so as to make their convictions constitutionally invalid. And, as the Court says, the day has long passed since the Due Process Clause was regarded as a proper instrument for determining "the wisdom, need, and propriety" of state laws.

[...]

As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law, even assuming that all those Amendments are fully applicable against the States. It has not even been argued that this is a law "respecting an establishment of religion, or prohibiting the free exercise thereof." And surely, unless the solemn process of constitutional adjudication is to descend to the level of a play on words, there is not involved here any abridgment of "the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." No soldier has been quartered in any house." There has been no search, and no seizure.' Nobody has been compelled to be a witness against himself.

The Court also quotes the Ninth Amendment, and my Brother GOLDBERG'S concurring opinion relies heavily upon it. But to say that the Ninth Amendment has anything to do with this case is to turn somersaults with history.

Griswold, STEWART Dissenting opinion (joined by Black) at 530:

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

At the oral argument in this case we were told that the Connecticut law does not "conform to current community standards." But it is not the function of this Court to decide cases on the basis of community standards. We are here to decide cases "agreeably to the Constitution and laws of the United States."

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Roe v. Wade, 410 U.S. 113 (1973)

I note that the basic privacy right argument in Griswold and Katz was repackaged and repurposed for abortion and used in Roe v. Wade. It is another emanation from the same penumbra. Substantive due process has been said to be the empty vessel into which the courts can pour anything.

Roe, Opinion of the Court at 153:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Roe, REHNQUIST dissenting at 172:

Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U. S. 347 (1967).

Roe, REHNQUIST dissenting at 174-77:

As in Lochner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be "compelling." The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe. To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, §§ 14, 16. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time." Ante, at 119.

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

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As Justice Gorsuch noted in his dissent, "it was Katz that produced Smith and Miller in the first place." As I noted above, the legal mumbo-jumbo in Griswold and Katz contributed mightily to Roe. I find the call for Gorsuch to join the majority of Roberts, Ginsburg, Breyer, Sotomayor and Kagan in support of Katz, and keeping Smith and Miller, somewhat curious. One explanation is a possible unfamilarity with what Katz and its progeny stand for — "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz at 351. "[I]n Katz the Court also stressed that '[w]hat a person knowingly exposes to the public... is not a subject of Fourth Amendment protection.'" Miller at 442. "When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed." Smith at 744.

Below are selections from the Opinions of the Court and the Dissents in Katz, Miller and Smith.

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Katz, 389 U.S. 347 (1967)

Katz Opinion of the Court at 351:

[T]his effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 210; United States v. Lee, 274 U. S. 559, 563. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 733.

Katz, Opinion of the Court at 353:

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.

Katz, BLACK dissenting at 364-66:

My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order "to bring it into harmony with the times" and thus reach a result that many people believe to be desirable.

While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. The Fourth Amendment says that

"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."

The first clause protects "persons, houses, papers, and effects, against unreasonable searches and seizures ...... These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both. The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a magistrate issue a warrant to eavesdrop one in the future? It is argued that information showing what is expected to be said is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general information really meet the specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.

Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was, as even the majority opinion in Berger, supra, recognized, "an ancient practice which at common law was condemned as a nuisance. 4 Blackstone, Commentaries 168. In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking out private discourse." 388 U. S., at 45. There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates on the Bill of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would be understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a charge against their scholarship, their common sense and their candor to give to the Fourth Amendment's language the eavesdropping meaning the Court imputes to it today.

Katz, BLACK dissenting at 372-74:

Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no longer good law, it must face up to the fact that these cases have never been overruled or even "eroded." It is the Court's opinions in this case and Berger which for the first time since 1791, when the Fourth Amendment was adopted, have declared that eavesdropping is subject to Fourth Amendment restrictions and that conversations can be "seized." I must align myself with all those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.

Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to "keep the Constitution up to date" or "to bring it into harmony with the times." It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention.

With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. By clever word juggling the Court finds it plausible to argue that language aimed specifically at searches and seizures of things that can be searched and seized may, to protect privacy, be applied to eavesdropped evidence of conversations that can neither be searched nor seized. Few things happen to an individual that do not affect his privacy in one way or another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U. S. 479, "The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not." (Dissenting opinion, at 508.) I made clear in that dissent my fear of the dangers involved when this Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee against 'unreasonable searches and seizures.'" (See generally dissenting opinion, at 507-527.)

The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy.

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United States v. Miller, 425 U.S. 435 (1976)

Miller, Opinion of the Court at 442-43:

Respondent urges that he has a Fourth Amendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy, He relies on this Court's statement in Katz v. United States, 389 U. S. 347, 353 (1967), quoting Warden v. Hayden, 387 U. S. 294, 304 (1967), that "we have . . . departed from the narrow view" that " 'property interests control the right of the Government to search and seize,' " and that a "search and seizure" become unreasonable when the Government's activities violate "the privacy upon which [a person] justifiably relie[s]." But in Katz the Court also stressed that "[w]hat a person knowingly exposes to the public... is not a subject of Fourth Amendment protection." 389 U. S., at 351. We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate "expectation of privacy" concerning their contents. Cf. Couch v. United States, 409 U. S. 322, 335 (1973).

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. The lack of any legitimate expectation of privacy concerning the information kept in bank records was assumed by Congress in enacting the Bank Secrecy Act, the expressed purpose of which is to require records to be maintained because they "have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings." 12 U. S. C. § 1829b (a)(1). Cf. Couch v. United States, supra, at 335. The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U. S. 745, 751-752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Id., at 752; Hoffa v. United States, 385 U. S., at 302; Lopez v. United States, 373 U. S. 427 (1963).

This analysis is not changed by the mandate of the Bank Secrecy Act that records of depositors' transactions be maintained by banks.

Miller, Opinion of the Court at 444:

Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time the subpoena is issued. California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, 400 U. S. 517, 537 (1971) (Douglas, J., concurring). Under these principles, it was firmly settled, before the passage of the Bank Secrecy Act, that an Internal Revenue Service summons directed to a third-party bank does not violate the Fourth Amendment rights of a depositor under investigation. See First National Bank of Mobile v. United States, 267 U. S. 576 (1925), aff'g 295 F. 142 (SD Ala. 1924). See also California Bankers Assn. v. Shultz, supra, at 53; Donaldson v. United States, supra, at 522.

Miller, MARSHALL dissenting at 456:

In California Bankers Assn. v. Shultz, 416 U. S. 21 (1974), the Court upheld the constitutionality of the recordkeeping requirements of the Bank Secrecy Act. 12 U. S. C. § 1829b (d). I dissented, finding the required maintenance of bank customers' records to be a seizure within the meaning of the Fourth Amendment and unlawful in the absence of a warrant and probable cause. While the Court in California Bankers Assn. did not then purport to decide whether a customer could later challenge the bank's delivery of his records to the Government pursuant to subpoena, I warned:

"[I]t is ironic that although the majority deems the bank customers' Fourth Amendment claims premature, it also intimates that once the bank has made copies of a customer's checks, the customer no longer has standing to invoke his Fourth Amendment rights when a demand is made on the bank by the Government for the records. . . . By accepting the Government's bifurcated approach to the recordkeeping requirement and the acquisition of the records, the majority engages in a hollow charade whereby Fourth Amendment claims are to be labeled premature until such time as they can be deemed too late." 416 U. S., at 97.

Today, not surprisingly, the Court finds respondent's claims to be made too late.

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Smith v. Maryland, 442 U.S. 735 (1979)

Smith, Opinion of the Court at 740:

Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action.

Smith, Opinion of the Court at 742:

Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their longdistance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." United States v. New York Tel. Co., 434 U. S., at 174-175.

Smith, Opinion of the Court at 743-44:

Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

[...]

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as 'reasonable.'" Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.

[...]

In Miller, for example, the Court held that a bank depositor has no "legitimate 'expectation of privacy'" in financial information "voluntarily conveyed to ... banks and exposed to their employees in the ordinary course of business." 425 U. S., at 442. The Court explained:

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id., at 443.

Because the depositor "assumed the risk" of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private. This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Smith, Marshall (joined by Brennan) dissenting at 749:

Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. See California Bankers Assn. v. Shultz, supra, at 95-96 (MARSHALL, J., dissenting).

The crux of the Court's holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one "society is prepared to recognize as 'reasonable.'" Ante, at 743. In so ruling, the Court determines that individuals who convey information to third parties have "assumed the risk" of disclosure to the government. Ante, at 744, 745. This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. [citations omitted] By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. Cf. Lopez v. United States, supra, at 465-466 (BRENNAN, J., dissenting). It is idle to speak of "assuming" risks in contexts where, as a practical matter, individuals have no realistic alternative.

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U. S., at 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 695 (1972); id., at 728-734 (STEWART, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government's previous reliance on warrantless telephonic surveillance to trace reporters' sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

Just as one who enters a public telephone booth is "entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," Katz v. United States, supra, at 352, so too, he should be entitled to assume that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the phone company's business purposes. Accordingly, I would require law enforcement officials to obtain a warrant before they enlist telephone companies to secure information otherwise beyond the government's reach.

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nolu chan  posted on  2018-06-26   17:20:36 ET  Reply   Trace   Private Reply  


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