Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
Everyone love patent cases, but the big case so far (with the travel ban punted) might be the one on cell phone location (over 127 days!). Cake is upcoming.
It's not surprising if the lawyer didn't want to do it, but overall logic does warrant at least tweaking third party doctrine (as Sotomayor noted in U.S. v. Jones, well deservedly). There was a lot of doubt from the justices on line drawing though the party [who for technical reasons might not even benefit but these cases aren't just about them] should be aware for both sides. Also, Gorsuch (who latched on to some "property" right argument that might help in some cases but sounds artificial and for which no one else was interested*) sounded like an smarmy asshole like usual.
THAT the individual shall have full protection in person and in property
is a principle as old as the common law; but it has been found
necessary from time to time to define anew the exact nature and extent
of such protection.
One is technically in "public" but like the original Brandeis/Warren article, "privacy" wants a liberal understanding that [as five justices -- no matter how Orin Kerr counts -- in Jones seemed to understand] guards against 24/7 monitoring that is "public" in only a very artificial way. The Fourth Amendment, pace Scalia in Jones, has been repeatedly emphasized by SCOTUS to ultimately be about personal privacy ("persons" in right there). Surely, specific things are cited ["persons, houses, papers, and effects"] but personal rights are an overall concern.
Again, we can take that too far, e.g., how some provisions are at least partially a matter of structure (the First Amendment as a whole was partially about giving states more power). The Fourth Amendment specifically invites balancing with the whole "reasonable" component though it also has certain fixed rules that are less flexible. So, electronic eavesdropping might very well invade "property" (the old form a lot more) but at some point it would require a broader view of property. For instance, property rights can include rules for seclusion.
Nonetheless, quoting that law article, if "has grown to comprise every form of possession — intangible, as well as tangible" is the rule, what is really the limits of "property"? "Liberty" can be deemed redundant. Likewise, the justices were right to be concerned about line-drawing and a bit too particular about congressional line-drawing being above that. There are certain basic lines (see also, "excessive bail") but statutory law can help clarify specifics. The courts can also step in to help with the contours, including (a favorite of the Roberts Court) certain "limiting principles" that at times result in somewhat artificial limits to open-ended powers.
24/7 monitoring for an extended period of time (that's vague, yes, but 127 days meets the test) is an unreasonable and even Rehnquist back in the early 1980s left that open to censure while upholding a placement of a primitive beeper without a warrant ["twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision"]. I'm not sure why a basic rule here requiring a warrant with the usual exceptions like exigent circumstances doesn't work, but fine. There should be limits. The same applies to the "third party doctrine" which even in 1970s application was suggested to have limits (concern about First Amendment interests vs. general business records; FN6).
Prof. Kerr, an expect in this field, argued in an article some time back that over time judges have accepted an ebb/flow balancing to protect persons when rules no longer seem to work. The breadth of the modern world in the area of communication warrants that here, especially since I think the dissenters even then had a point. If a phone call is protected, a phone number if still fairly private in various ways -- it is why the government aims to obtain them really. A "voluntary" surrender of privacy for specific reasons (to get phone service?!) is a ridiculous fiction. Certain things we share for limited reasons, something the Court is more aware of when it involves medical matters (contra Rehnquist's dissent in Roe v. Wade where he argued an abortion isn't really "private" since a third party is involved).
Location is a bit harder than phone numbers, but at some point, yes, personal privacy warrants protection. As noted in the oral argument, technology can pinpoint location to parts of the home. Is reports you went to the bathroom "x" number of times not sensitive information? That is true even if it is not at the home. Privacy, as Lawrence v. Texas et. al. reminds, is to some degree protected outside the home. A Star Trek-like ability to ping your location 24/7 would be a violation there.
The lines to be drawn will be tricky probably but such is the nature of the law in general. In the past, worrying about lines for breathalyzers wasn't an issue either, since they didn't exist. And, cell phones change the situation there too since now phone warrants are easier to obtain.
* Scalia's opinion ruling on an unauthorized placement of a tiny tracking device on the car seemed overly formalist to a mixture of justices, even if not everyone would rely merely on that. I won't link, but other than Sotomayor's concurrence, we also have Kagan's in a case involving placement of drug dogs on a porch. There is both the property interest involved and the general concern for privacy. The latter helps wider concerns -- see, e.g., Griswold.
Gorsuch's reference seemed a bit forced to fit things into a certain "box," which people with his artificial view of constitutional line drawing will tend to do. Maybe, it was just a hypo. We shall see.