Defining Democracy: Fourth Amendment

Fourth Amendment

The Fourth Amendment is the right of the people to be free from unreasonable searches and seizures. And although most of us probably don’t know what that means exactly, it’s hard to imagine a world without this important protection. We tend to relax when we’re at home, secure in the knowledge that the government cannot enter our premises without a warrant. And we know that if a warrant has been issued, that it has been issued by a judge and based on probable cause. Likewise, when most of us walk on the street or drive in our cars, we feel secure in the knowledge that the police cannot stop us without some specific suspicion that we have done something wrong, or to be more precise: something illegal. Knowing that we are secure in our personal space, free to do as we please without fearing arbitrary government intrusion, provides us with a peace of mind that sits at the very core of our liberty as Americans.

In recent years, however, that liberty has come under attack in ways that many of us don’t even realize. But just because we don’t recognize this intrusion on our liberty, doesn’t mean it’s not happening.

Imagine you live in Kansas City, Missouri in an America only slightly different from our own. You’re a businessperson, owning a chain of barbeque restaurants in the city. You make a good living and contribute to a variety of philanthropic causes. And recently, you have begun contributing to several local campaigns, including the mayoral race. The city’s current mayor is a pompous man. He’s also incredibly corrupt, and you decide to give to his opponent. You even hold a fundraiser for her at one of your restaurants.

You know that your public support for the mayor’s opponent will probably enrage him. But you don’t give it a second thought. After all, this is America. You have the right to support whatever political candidate you want. What’s the mayor going to do about it?

Well, it is America. But you soon come face to face with what’s possible in the country you love. On Saturday morning, your wife receives a letter in the mail that details your movements over the past six days. The letter also includes every single number you have called during the last six months. The document your wife received is extensive, but its cover page summarizes key highlights. You have dialed a number belonging to your ex-girlfriend more than 50 times during this time period. And according to cell site location information, you have traveled near your ex-girlfriend’s house twice over the last six days, both times very late at night. Your wife is obviously furious and assumes the worst, and frankly, she’s right. You’ve been having an affair.

At first, you don’t understand who sent this to your wife or how they obtained all this information. But after contacting your lawyer, it becomes clear. The mayor had his police department contact the local telecommunications company, ordering them to hand over all meta-data associated with your cell phone pursuant to “investigatory purposes.” The company complied. You respond to your lawyer, “How is this constitutional? Isn’t this a violation of my 4th Amendment rights? What probable cause could the government possibly have to get a warrant for my information? I’ve done nothing wrong.”

Unfortunately, what the lawyer tells you is shocking.

No warrant was required, and the mayor did not violate your 4th Amendment rights. Those rights are only implicated when the government has either conducted a search or a seizure, and in this particular case they did neither. Indeed, the Supreme Court has ruled that there’s only been a search when the government has violated your “reasonable expectation of privacy.” But you don’t have a reasonable expectation of privacy in information you voluntarily expose to third parties. And when you make phone calls, you are voluntarily communicating to the phone company the phone numbers of the people you’re calling. What’s more, when your cell phone is on, it communicates with cell phone towers, which reveals your location, if you happen to be with your cell phone. And this process is voluntary, as well.

You are blown away. It is true that you technically “voluntarily” supplied all of this information to the telecommunications company. After all, you could have avoided buying a cell phone altogether or kept it in the house. But realistically, this is how everyone conducts themselves in modern society. What kind of dystopian world do we live in if simply by virtue of using an iPhone (or any other phone), the government can learn your secrets without violating your constitutional rights? The 4th Amendment protects us against unreasonable searches and seizures. How is any of this reasonable?

The world described above might be almost impossible to imagine. But although it is not quite the world we actually live in, it isn’t so different.

Until 2018 when Chief Justice Roberts wrote the majority opinion in Carpenter, the government could obtain any kind of meta-data from an American without probable cause or a warrant.

It is true that law enforcement would still have had to procure an order pursuant to a judge to compel a wireless provider to turn over the data, but to do so they had to satisfy a standard far less robust than what would be required by the 4th Amendment. And importantly, Carpenter only affords cell site location data protection under the 4th Amendment. What that means is that law enforcement can still access the phone numbers we dial without a warrant. What’s more, based on Roberts’ ruling in Carpenter, the only thing we know for sure is that obtaining 7 days or more of location data constitutes a search requiring a warrant. In other words, it is possible that the government can learn six days worth of your movements without implicating your rights under the 4th Amendment. Imagine the secrets of yours the government can learn from this information.

We are living in precarious times regarding our right to privacy. Carpenter was a narrow decision that left many important issues undecided. It was also a 5-4 decision, and the Court’s composition has changed since then. As the world becomes increasingly governed by technology, the courts will be confronted with questions that our founders could not have anticipated when they adopted the 4th Amendment back in the 18th century. To protect our liberty, of which privacy is a core component, we must remain ever vigilant.