Analysis of Justice Gorsuch’s pseudo-dissenting opinion

While there’s much of this dissent where I disagree, which will be discussed below, I must confess that this dissent is an entertaining reading that is much less dry than his colleagues. While I disagree with his ultimate result here, in the end (which he recognizes) it doesn’t matter and he makes some important points that can be used by the defense bar in future Carpenter litigation.

Justice Gorsuch recognizes at the outset that the third-party doctrine, if taken to it’s logical extreme as the other dissenters would, would eviscerate the Fourth Amendment. Here’s one interesting excerpt, among many:

“What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it
easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and,increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.”

After Gorsuch maps out the three most obvious ways to deal with this problem of the use of mass surveillance through third-party servers by the Government:

1. Maintain Smith and Miller and its holdings regarding the third-party doctrine which “means our Fourth Amendment rights are reduced to nearly nothing….”.

2. Overrule or modify Smith and Miller in light of Katz’s “reasonable expectation of privacy” test and case law.

3. A third option.

Justice Gorsuch believes that Carpenter has a viable claim, but through the matrix of property rights, not a reasonable expectation of privacy rubric. He simultaneously castigates the other dissenters for their (almost) unlimited view of the third-party doctrine while agreeing with them that the Katz standard is unworkable.

He notes that the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them, giving several common sense examples including giving your car keys to the valet.

He returns to the property concept that “(e)ntrusting your stuff to others is a bailment. A bailment is the ‘delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a
certain purpose.’ Black’s Law Dictionary 169 (10th ed.2014); J. Story, Commentaries on the Law of Bailments
§2, p. 2 (1832).”

He notes that prior case law already reflects this, citing In Ex parte Jackson (96 U. S. 727 (1878)) (mail carrier) and that it makes no difference that “letters were bailed to a third party (the government, no less).”

Gorsuch believes these “ancient principles may help us address modern data cases too. Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment
interest in its contents.”

Gorsuch also spends time discussing why subpoenas are not a panacea for the prosecution to permit these searches as Justice Alito apparently believes:

“(T)his constitutional floor may, in some instances, bar efforts to circumvent the Fourth Amendment’s protection
through the use of subpoenas. No one thinks the government can evade Jackson’s prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for ‘all letters sent by John Smith’
or, worse, ‘all letters sent by John Smith concerning a particular transaction.'”

This is important because Justice Alito appears to believe that emails are protected by the Fourth Amendment but not other data, without explaining why or attempting to even draw a distinction. One can argue persuasively in front of conservative judges, using Gorsuch’s logic, that if emails are protected, then other data is as well.

Gorsuch believes that the third-party doctrine of Smith and Miller is therefore wrong.

Gorsuch is also not a fan of the reasonable expectation of privacy test out of Katz and sympathizes greatly with the other dissenters.

He also believes it’s possible that cell-site data could qualify as his papers or effects under existing law.

In the end, Gorsuch believes that Mr. Carpenter loses although he should win because Carpenter forfeited this property analysis.

Now, nothing stopped Gorsuch from concurring in the judgment and refusing to join the Court’s opinion. After all, isn’t forfeiture a limitation on the parties but not on the Court or the individual Justices?

Still, Gorsuch realized whether he concurred or dissented made no practical difference because Carpenter was going to win anywway. I believe Gorsuch dissented because he wanted to send a statement to all of us:

Do not give up on property analysis to focus exclusively on expectations of privacy.

We should take heed of this in formulating our arguments.

Next I will briefly discuss what other cases were specifically affected by the Court by the Carpenter opinion.

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