The Fourth Amendment in the 21st Century: The Modern Equivalent of Papers and Effects?

One of the comments to my earlier post on the Fourth Amendment was interesting:

These records are the modern equivalent of papers and effects. Excluding these records from the protection of the Fourth Amendment is as logically sound as excluding Internet and telephone and television communications from the protections of the First Amendment or excluding any firearm more advanced than a flintlock-actuated black powder muzzle-loader from the protections of the Second Amendment because these things were not even dreamed of by the framers of the Constitution.

This is interesting, but I don’t agree.

I think one’s cell phone is an effect.  And so a search of the phone is certainly covered by the Fourth Amendment.  But I don’t think the phone records of the cell phone company are effects.  One need not consider modern circumstances to answer that question.  The cell phone records are like a record by a ship owner in 1787, listing the property that people had brought on the ship.  This record is unlikely to have been deemed the effect of the property owners (although it would be a paper of the ship owner).

The best case for treating the records as an effect is if there were a private contract between the customer and the phone company that required the records to be kept private.  If the contract provided that the records were the property of the customer, held in custody by the phone company, then that would probably make them an effect.  If there were merely a contractual right for the records not to be released, that might make them an effect, but it is not clear.

The comment suggests that treating the business records as covered is similar to treating speech over television or the internet as covered by freedom of speech. But I don’t think so.  Speech is speech, whether in a public park or over television.  A better argument would claim the question is analogous to whether television news involves freedom of the press.  But some argue that press means a method of mass producing speech, which would cover television news.  Even if that were not the definition of press, one probably needs to ask of new technologies how closely analogous they are to traditional technologies.  In the case of cell phones, the closer analogy are the records of ship owners.  (By contrast, this type of argument might work to address interceptions of cell phone calls.  This is a new technology and perhaps this is similar to the post office opening your  mail.)

To get the business records covered by the Fourth Amendment, I think one needs to go several steps further and treat the constitutional language not as binding law but instead as an abstract principle to be translated into modern day circumstances.  Under this view, the language might not matter that much, and the fact that technology has changed the world would suggest that the business records are the modern day version of papers and effects.

This is a possible way of interpreting the Constitution that some people find attractive.  But I don’t.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. Titus says

    I believe, Professor, that your example is an excellent attempt at analogizing to a founding-era phenomenon. But it falls short.

    First, to which records are we referring? Are we discussing solely the metadata generated by a telephone call? That data, generated by the carrier’s hardware and maintained by the carrier, might well analogize to a shipping manifest. The manifest would be a paper or effect of the carrier (and it’s never been particularly clear to me why the carrier lacks a fourth-amendment interest in it, but leave that aside).

    But the contents of communications themselves are different. These are more like papers kept in the desk of a man who has a butler. The butler has the house keys and the run of the premises. He is able to go into the man’s study and examine the papers in the desk. But standards of conduct known to the man and the butler prohibit such conduct. (We might also apply the same thought experiment to messenger boys.) Likewise, an ISP or a phone company has the power to examine the contents of e-mail or cell-phone communications, but for them actually to do so is a transgression of the systems’ terms of use and conventional standards of decorum.

    No one could claim that a man lost the protection of the fourth amendment in 1792 because he had household staff. No one should claim that we give up the protections of the fourth amendment today because third parties have a not-to-be-exercised ability to snoop.

  2. says

    I found your comparison between cell phone records and the record of a ship’s cargo (its manifest, which is really the aggregate of all bills of lading between the ship and its cargo customers) interesting. Maybe this holds if we’re taking the figurative technological term “packet” to be literal for the purposes of comparison. A ship transports(ed) packets(ages). A cell phone carries data packets. But there’s something awkward about the comparison, mostly because we don’t cognize information and “effects” or goods (chattels) in the same way we cognize the transmission of information.

    The functional protection of the 4th Amendment over papers is the protection not of the paper itself but of the information on the paper. The functional protection of the 4th Amendment over one’s effects is bifurcated: it both is to protect whatever information those goods might imply about their owner and to protect the owner’s property interests in those goods.

    A cell phone is an effect. A cell phone’s data transmissions are much more, functionally speaking, akin to papers. Sure, the 4th Amendment would have protected the proprietary interest in the paper (not to be torn or burned, etc.), but the primary purpose was to safeguard the person’s information privacy.

    Furthermore, the phrase “persons, houses, papers, and effects” seems to be the best possible catch-all formulation that could be had in 1789 for anything and everything in which privacy was to be expected. If we are going to discretely describe and compare each one in an exclusio unius fashion, then we have to do so with current technology in mind.

    Because information about persons is now technologically distributed between different agents, who necessarily aggregate their information between customers in order to facilitate communication, it would seem odd that two people communicating in the modern age should not enjoy protections of privacy about the meta-data of their conversation or communications just because they happen to use a system that necessarily aggregates data as the raison d’etre for the system’s existence.

    Imagine Ben Franklin’s response to the British assertion that the Crown could open up all the mails in his post office in order to find out information about the Crown’s American subjects. This is effectively what is at stake in 2013 and I am confident that the Founders would have considered those mails to be the papers of American citizens even though they were under the care of the agency of the post office for a time.

    The ship’s manifest, as I pointed out, is a conglomeration of all the information contained in the bills of lading between the shippers (cargo owners) and the carrier (ship). A manifest comprises information about goods, not meta-information (information about information), as cell phone data does.

    The other thing that makes this comparison particularly unwieldy is that vessels have never enjoyed extensive 4th Amendment protections on the high seas because the post-Westphalian view of the world saw ships as little islands of soil floating throughout the seas, subject to the complete jurisdiction and regulation of the flag state. There is a significant divide between land-based 4th Amendment jurisprudence and maritime 4th Amendment jurisprudence, so the comparison of a cell phone to a ship’s manifest with the resultant conclusion that the latter has no privacy and therefore the former may not either loses something in historical translation. A ship’s manifest has no reasonable expectation of privacy not because it’s information traveling through public spaces; it has no privacy because of a different mode of jurisprudence that saw ocean and land as totally different artifacts.

    I think a better comparison would be between cell phones and the mails—or even better yet, papers.

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