In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location). In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration. But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.
The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significantly, the two clauses are separated by an “and.” This “and” has led to an uncertainty about the relationship between the two clauses.
Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject. The text of the Fourth Amendment is filled with significant interpretive questions.
In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.
Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.
McCarthy argues that the Framers would not have wanted the courts reviewing national security decisions, such as whether the executive had a good-faith national-security purpose for the search. But as I noted in my prior post, the Constitution through the Fourth Amendment authorizes the courts to make these decisions if a citizen is being searched as to his home or other place within the scope of the Fourth Amendment.
McCarthy appears to want to distinguish these cases from the NSA programs by claiming that the NSA programs do not effect constitutionally protected searches. While that may be true under existing Supreme Court precedent, he makes a claim about the Framers and that raises different questions. Two Supreme Court doctrines suggest that these searches do not implicate the Fourth Amendment. One is the third party doctrine, which suggests that records held of phone calls by a cell phone company are not protected by the Fourth Amendment. Another is the related doctrine concerning metadata, such as your phone number or the phone number you called, that asserts such data are not protected by the Fourth Amendment.
Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting: It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar; and Peter Swire, a privacy-law expert who also worked in the Clinton administration. I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel…