Opinion: Like Scalia, Gorsuch seems willing to protect privacy – if you call it property

Privacy advocates were heartened by Wednesday’s oral argument in the Supreme Court in Carpenter vs. United States, involving a challenge to the warrantless acquisition by the FBI of cellphone location records that helped convict a Michigan man of a number of armed robberies.

Several justices from across the court’s ideological spectrum (as Supreme Court reporters like to say) were receptive to the argument that police must obtain a warrant before obtaining such records — at least if they cover a long period of time.

But a lot of attention focused on the grilling of the opposing lawyers by Justice Neil Gorsuch, for two reasons: His vote could be pivotal, and he outlined an approach to protecting the privacy of such records that is different from that favored by a lot of privacy advocates — but one that would please the man he replaced, Antonin Scalia.

As the Los Angeles Times explained in an editorial on Monday, the appeal by Timothy Carpenter of his federal conviction raises the question of whether the court should modify its so-called “third-party” doctrine, which holds that individuals don’t have a reasonable expectation of privacy in information they turn over to businesses such as telephone companies.

Whether a search violates someone’s “reasonable expectation of privacy” is one yardstick by which the court decides whether there has been a violation of the 4^th Amendment. That approach traces back to a 1967 decision in which the court held that the FBI committed an unconstitutional search and seizure when it attached an eavesdropping device to the outside of a telephone booth.

But there is an older definition of “unreasonable search” that involved a physical trespass on private property. It was that notion that Scalia invoked in 2012 when he wrote the majority opinion in a case in which the court ruled that attaching a GPS tracking device to a drug suspect’s vehicle was search.

“It is important to be clear about what occurred in this case,” Scalia wrote. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the 4^th Amendment when it was adopted.”

On Wednesday Gorsuch’s questions indicated that he too saw privacy as a subset of property rights. Indeed, in questioning Carpenter’s lawyer he began: “Focusing on the property-based approach, putting aside reasonable expectation for just a moment . . .” Later, in a colloquy with the lawyer representing the U.S. government, he suggested that a cell phone data was a customer’s “property right.”

To win, Carpenter needs five votes, not five signatures on the same opinion. Conceivably four justices could sign an opinion based on the “reasonable expectation” approach, and Gorsuch could write a solo concurrence based on a property-rights theory. But Chief Justice John G. Roberts Jr. is known to prefer consensus. Would Gorsuch be willing to sign an opinion that reached the right result by the “wrong” reasoning?

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