This week’s segment of Cline on the Constitution
Privacy and Property
One momentous decision of the Supreme Court’s last term involved cell-phone privacy.
In Carpenter vs. U.S., penned by Chief Justice Roberts, the Court found that data collected from a cell phone that pinpointed a suspected robber’s movements over 127 days involving 12,898 location points violated the target’s privacy rights. It found that he had “an expectation of privacy” in the data on his cell phone.
While most of us assume the information on our cell phones is private, legally it has been far from clear that the protection from governmental intrusion is of constitutional dimension. The Court regularly employs an “expectation of privacy” test. Essentially, a person must have a “objectively reasonable” expectation of privacy in the area to be searched.
The “expectation of privacy” test was derived from the landmark case Katz vs. U.S. The court found it that case that a listening device attached to the outside of a telephone booth violated the Fourth Amendment. (Most of my students have never seen a telephone booth. I show them a picture) The court ruled that the Fourth Amendment prohibition against unreasonable search and seizure was violated since the occupant of the phone booth had a “reasonable expectation of privacy.”
In order to reach the holding in Carpenter, however, the Roberts court had to ignore two of its own precedents that held there was no “expectation of privacy” in records held by a third party. In United States v Miller, the court held there was no expectation of privacy in financial records held by a bank and in United States vs. Smith it held there was no expectation of privacy in records of telephone numbers conveyed to the telephone company. So, can we reasonably say we have an expectation of privacy when our cell phone data is held by a third party, i.e. the entities that operate the servers over which the data flows or is stored.
The Carpenter case had to stretch the rationale for the decision to fit the Expectation of Privacy doctrine. And the way it did so gives us a potential roadmap for how the law will develop in the future. Given the interdependence of modern technology, the Expectation of Privacy test is either going to have be refined or replaced.
I will go into more detail on the Carpenter case in my next blog, but I thought it might be worthwhile to explore how the Court was able to arrive at the decision it did. It gives us a hint of where the jurisprudence might go.
One of the cases the Roberts court cited repeatedly was a decision written by the brilliant Justice Antonin Scalia. The case was actually discussed by the nominee in the Kavanaugh hearings though it went over every senator’s head with exception of Senator Lee from Utah.
The case was U.S. vs, Jones. The government attached a GPS device to a car and left it on beyond the time authorized by a warrant. Scalia, to the consternation of the justices in the minority found it was unnecessary to consider the Katz “Expectation of Privacy” test because the government’s action was a trespass against the Property rights of the car owner.
And here we pause. Property Rights? Are they important anymore? We might want to pay attention since the Far Left has unleased the dogs of socialism.
The Fourth Amendment protects “The right of the People to be secure in their persons, houses, papers and effects against unreasonable search and seizure.” Note it says nothing about privacy rights; what it does talk about are property rights: “houses, papers and effects.” In Scalia’s historical analysis he argued that the framers plainly included this language to protect against the trespass of these property rights by the government.
One more example: The Fifth Amendment provides that no person shall be “deprived of life, liberty, orproperty, without Due Process of Law”. As originally written the provision was a restriction on only the Federal Government. The Fourteenth Amendment, passed after the Civil War, made it applicable to the States. “Nor shall any State deprive any person of life, liberty, or property without Due Process of Law.”
Were property rights put on a par with rights to life and liberty by the drafters of the Constitution? In contemporary society, a premium is put on protecting individual rights and liberties. Okay. But did the framers, in their wise and prudent efforts to protect us from governmental oppression, know something we have lost sight of regarding the rights to property?
Let’s drill down just a little further.
John Locke and the natural rights theory, that is that our rights are given us by our maker not granted to us by a government, led to the explicit protection of unenumerated rights in the Ninth Amendment. And one of those unenumerated rights is the Right of Privacy which we hold so dear today. Privacy encompasses a broad range of “rights” such as abortion, marriage and, now, Cell phone privacy. Though we traditionally trace the right of privacy to decisions written by the likes of Justice Douglas in the sixties, ironically, the first time the term was used by the Supreme Court was a business/contract case circa 1938.
Besides John Locke there were actually two other early influencers on Hamilton, Jefferson, Madison, and John Adams.
And now for some concepts I brazenly lifted from studies on the philosophical underpinnings of the Constitution. Go ahead and read it. It won’t hurt.
Thomas Hobbes (1588-1679) believed Man is most actuated by self-preservation and, therefore, seeks power in all its forms. Yet Man is not a beast in the jungle and realizes in anarchy only brute force prevails. Man, therefore, surrenders some of his rights to government, in return for protection and order. He, thereby, insures himself a society where cunning rather than strength is the essence.
Hobbes’s attitude toward the nature of Man coincided with the old Puritan doctrine of Man’s depravity and justified the “property consciousness of an acquisitive young society.” Those same utterances can be traced to the Federalism constructs of Alexander Hamilton.
John Locke (1632-1704) differed with Hobbes on many things, though they shared the view of the perverse and predatory nature of Man and agreed that government was necessary to prevent anarchy. The form the government should take was where they differed. Like Hobbes, Locke believed that to curb man’s perversity of his own nature, man creates government and in so doing willingly surrenders some measure of his natural rights in return for security for person and property. However, man does not sign over a blank check. To Locke, government is a function of the governed, existing by their consent and responsible to them for its actions. Government is not a Sovereign but rather a Fiduciary, a property concept.
All men, Locke said, have a natural instinct for life, liberty, and property. The first two of those Man holds in common with beasts, but the third, property, is peculiar to man alone. It is in the view of Locke and others justified by the Bible. “God has given the earth to the Children of men.”
He concludes that the rights of life and liberty can to a large degree be obtained in the state of nature, but the right to property is insured only under government.
“The great and chief end,” he says, “therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property.” He felt the right of property was inviolable and that government is bound by social contract to protect that right and may never abrogate it without the consent of the property owner. He felt that in times of war and emergency, the government can conscript the life and limit the freedom of the individual, but may never arbitrarily remove his possessions.
Locke in exalting the three virtues of life, liberty, and property, argued the greatest of these is property.
The third philosophical influence, Jacques Rousseau (1712-1778) was a disciple of Locke, but a far more sanguine believer in the natural goodness of Man. He bemoaned Man’s acquisitive nature and discoursed on his belief that in a state of nature where the fruits of the earth are available to all, Man is “a noble savage” ignorant, satisfied, and perfectly free. When private property is introduced, Man begins to lose his natural goodness. Government is there, he believed, to protect private property, and therefore is corrupting. A significant concession. He therefore, advocated for a pure democratic form of government, in which sovereignty rests in the people.
Our founders, however, viewed Rousseau’s views dimly and his view that the general good is more important than personal possessions had no appeal to them though his ideas about universal education and the virtues of agrarian life, were later reflected in the views of Jefferson and ultimately, Andrew Jackson.
Heavy stuff.
But, it does establish that property rights to the framers of the Constitution were extremely important. And to maintain true freedom, they felt, the government should be restricted in interference with an individual’s property rights. Something we should keep in mind when we contemplate the schemes the government in Sacramento is contemplating. They have many grand schemes, including universal health care for citizen and non-citizen alike. They have to pay for many of these grand schemes, not with their money, but with ours. There is no other funding source. And for the average citizens, whose major possessions are their automobiles and homes, one might be concerned that their property rights being whittle away by a government who wants to decide how they are to live, how they are to drive, and how they are to enjoy the property they own.
In my next segment I will try to connect this up to how the Supreme Court is going to handle this crossroad. And how Constitutional law is headed for a collision between Privacy and Property.
For more articles on the Constitution and other writings by Phil Cline, visit philcline.com