To aid its investigation into a string of robberies in Michigan and Ohio, federal agents acquired, without a warrant, the cellular-site location data of Timothy Carpenter, a suspect in the crimes. In a controversial 5-4 opinion, the Supreme Court held last week that, “[g]iven the unique nature of cell phone location information . . . The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment,” meaning that the government violated Carpenter’s rights against unreasonable searches. This judgment reflects the mistaken view that the Constitution contains an answer to all bad policies. It doesn’t. A rigorous textualist approach to Carpenter would have made this clear.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” the Fourth Amendment declares. Those words should have guided the Court, as Justice Clarence Thomas argued in his dissent, to come to precisely the opposite conclusion than the one it reached. The word “their” in the Fourth Amendment’s language is key: can one have a Fourth Amendment right to be secure in things that one does not own, or have a “property interest” in? Did Timothy Carpenter have a property interest in his cell-site location data?

Legal scholars often characterize property as a bundle of sticks, each representing a particular entitlement or right. These include the right to possess something to the exclusion of others, to sell or transfer, and to destroy. Cellphone customers cannot possess, sell, transfer, or destroy the cell-site location data tied to their service accounts; these data belong to the service providers. If we don’t own the records kept by cellphone companies, such records cannot be counted among our effects—an apparent prerequisite, according to the Fourth Amendment.

Rather than attend to the constitutional language, however, the Court stuck with a precedent—established in Katz v. United States—that the Fourth Amendment applies whenever we have “a reasonable expectation of privacy” that “society is prepared to recognize as reasonable.” Among the problems with this malleable rule is that it requires a handful of judges in Washington to determine what society is prepared to recognize. Yet the only branch of government equipped to represent and understand the preferences of society is the one tasked with making the law—the legislature, not the judiciary.

Requiring state and federal government agents to get a warrant before obtaining and using cell-site location records for use as evidence in a criminal case is sound policy—but public-policy concerns are not the proper domain of judges. When the Court takes such concerns into consideration, it makes for bad law. The Roberts Court has expressed on multiple occasions an unwillingness to bring about radical jurisprudential shifts. Legal stability and predictability are important, but getting constitutional questions right is even more essential. Moreover, the benefits of predictability derived from longstanding legal frameworks are diminished if those frameworks cannot function as broadly applicable principles.

Given the reluctance of the Roberts Court to revamp these longstanding frameworks, the possibility of squaring Fourth Amendment jurisprudence with the Constitution’s text will grow more remote as precedents like Carpenter get applied over time. When a case is decided, the rules that it sets out bind courts in future cases, according to the principle of stare decisis, or “standing by what’s been decided.” The application of binding precedents to new cases leads to the entrenchment of rules over time. And as the public comes to rely on the presumed validity of certain holdings, the stakes of overruling a longstanding precedent go up.

There is, however, one way to avoid the entrenchment of Carpenter in our jurisprudence—and to minimize the consequences of the Court reversing itself in the future. Congress and the state legislatures can pass laws to require law-enforcement officers to obtain warrants before they can gain access to the cell-site location information held by phone companies. Doing so will have the added bonus of reminding the Court of something that it seems to have forgotten: that the people are capable of dealing with public-policy questions through the political process, just as the Founders intended.

Photo: alexsl/iStock


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