Privacy has been linked to property for much of American legal history. The root of this association can be found in the Fourth Amendment, which articulates “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Until the Supreme Court announced its “reasonable expectation of privacy” (REP) analysis in the landmark case Katz, trespass doctrine was determinative in defining a search as a search for Fourth Amendment purposes.
Justice Brandeis’ dissent in Olmstead conveyed his dissatisfaction with the trespass doctrine. While his peers may have been more focused on “houses,” Brandeis was concerned about the people’s ability to be “secure in their persons.” When applying the Constitution, Brandeis wrote that “our contemplation cannot be only of what has been but of what may be.” Technological advancements that allow for “invasions of individual security” but are not within the scope of trespass doctrine should not escape the reach of the Constitution. The Constitution is not a sieve. Brandeis believed that the people have a right to be left alone by the government and that “every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”
Four decades later, the majority in Katz shifted closer to Brandeis and wrote that “the Fourth Amendment protects people, not places.” The REP test, though, was perhaps not as broad as Brandeis would have liked. It was not considered reasonable to have an expectation of privacy in bank records (Miller) or records of telephone numbers (Smith v. Maryland). Under third party doctrine, there is no REP when information is voluntarily given to third parties such as banks, phone companies, or internet providers.
The majority in Kyllo held that a search occurred when police used unconventional sense-enhancing technology to obtain information regarding the interior of the home. Writing for the majority, Justice Scalia was appalled by this method of obtaining such intimate details which would have otherwise required physical intrusion. He also rejected a “mechanical interpretation of the Fourth Amendment.” Scalia reasoned that it is inaccurate to say that the thermal imager technology in Kyllo simply captured heat emanating from the house. By that logic, the wiretapping in Katz should have been permitted for simply picking up sound waves. Similarly, data should not be reduced to its definition: “factual information used as a basis for reasoning, discussion, or calculation.”
In Jones, Justice Sotomayor’s concurrence includes a powerful quote from a New York Court of Appeals decision, People v. Weaver, that captures how personal a GPS record can be: “Disclosed in [GPS] data … will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” In his concurrence, Justice Alito considered the possibility that some people may accept the loss of privacy as an inevitable and worthwhile trade in order to live in a more convenient society. Justice Sotomayor disagreed and cited Justice Thurgood Marshall’s dissent in Smith (“Privacy is not a discrete commodity…Those who disclose certain facts… for a limited business purpose need not assume that this information will be released to other persons for other purposes”).
In Carpenter, the Court held that “the deeply revealing nature of CSLI” deserves Fourth Amendment protection. The majority was troubled by the encyclopedic nature and ability to easily compile years worth of a person’s past movements simply through a record of cell phone signals. Cell phones, unlike GPS tracking on vehicles, can create near perfect surveillance because they are almost a “feature of human anatomy” and follow a user everywhere as though they are wearing an “ankle monitor.” Rather than users affirmatively sharing their data, it would be more accurate to say that third parties passively log all information from cell phone activity in an “inescapable and automatic” manner. Whether cell phones are seen as a “feature of human anatomy” or cell phone data is viewed as the “modern-day equivalent” of papers and effects, full Fourth Amendment protection is required.
Considering this evolution, it is hard to imagine how money can cure what is otherwise a Fourth Amendment violation under Carpenter. Law enforcement should not be allowed to indiscriminately buy data that would otherwise require a warrant.
This should be so because privacy is not strictly about property; privacy is necessary to personhood. Brandeis’ understanding of privacy included elements that are highly distinct from the typical idea of property. When discussing the intent of the framers in his Olmstead dissent, Brandeis mentions “the pursuit of happiness,” the “significance of man’s spiritual nature, of his feelings and of his intellect,” and the desire to “protect Americans in their beliefs, their thoughts, their emotions and their sensations.” This is not language that is typically associated with property or intuitively in the purview of the Fourth Amendment. This language seems more closely connected to freedoms afforded by the First Amendment.
It is disturbing that data can be viewed as property and sold as a commodity. Treating data as abstract property that is easily disembodied does not cohere with the reality that this is highly personal information about ourselves. A price cannot adequately compensate for the parts of ourselves that we lose. We are not commodities to be sold. Property can be defined by a price. But encyclopedic data that can paint a detailed and personal portrait exists on a precious and priceless plane demanding protection. Irreparable harm can be done otherwise.
The way our data is used by the buyer can lead to losing our autonomy. Being viewed through a lens of capitalism instead of human dignity can lead to us losing our freedom or chill us from acting as freely as we otherwise would. The practice of law enforcement entities buying data that would otherwise require a warrant has implications beyond the Fourth Amendment. Nieves v. Bartlett is not a case about privacy but it is a case that demonstrates the intersection of the First and Fourth Amendments and the potential risk of abuse by law enforcement. Data may provide pretext cloaked as probable cause and result in the defeat of First Amendment retaliatory arrest claims. Suppose data is bought and used to surveil Black Lives Matter activists; the data may be used to cobble together probable cause under the label of national security when in reality, the activists were targeted for exercising their First Amendment rights. Buying data as a loophole to the Constitution without even minimal oversight mechanisms may give law enforcement the freedom to manipulate narratives.