Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
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.
In particular, Congress has provided customers of cell phone companies with protection as to their location information. In 47 U.S.C. 222(a), Congress states that “every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, … customers.” Other provisions make clear that location information is part of the information to be protected. 47 U.S.C. 222(c), (g).
Some have argued that this provision creates a property right or interest in the customer. While this information has been disclosed to a third party (the cell phone company), it is argued that the customer still retains a property interest in its protection. Thus, if one has a property oriented understanding of the Fourth Amendment, as Justice Scalia seemed to have, then this property right might indicate the customer had a right to be protected under the Fourth Amendment.
This is an interesting argument, but it may or may not be right under the original meaning. As I explained in my prior post, the Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Therefore the question is whether this information is a “paper” or “effect.” Perhaps Justice Scalia had a property oriented theory of the Fourth Amendment, but the text of the Amendment does not speak of property, but of more specific things, such as “paper” or “effect.”
Under a straightforward, but perhaps narrow definition of paper and effect, the information would not be a paper or effect. A paper would refer to the actual physical piece of paper, not the information contained on it. An effect would refer to personal property or movables that a person can carry on their person. In neither case would the “information” be a paper or effect. Perhaps a paper or a memory stick with that information on it would be a paper or effect, but not the information itself.
Yet one might argue that these terms should be read more broadly. In particular, perhaps an effect should be understood to include not merely personal property movables but also property in information. Perhaps, but my sense – albeit based on limited study – is that this information would not have been considered an effect in 1791.
But maybe a different interpretive rule would justify a broader reading. If property in information of the relevant kind did not exist in 1791 – there were patents, but no privacy interests seem implicated by them, and trade secrets did not exist until the 19th century – then one might say that the relevant legal environment did not exist at the time of the Fourth Amendment. In those circumstances, sometimes it makes sense to answer the question based on an analogy. For example, one might argue that freedom of press might extend to radio or tv news, even though they did not exist at the time of the First Amendment, on the analogy that they are similar to the printing press in the relevant respects. Similarly, one might argue that if property in information of the relevant kind existed in 1791, the Fourth Amendment would have protected it. Maybe.
In a future post, I hope to show how Congress, the states, or private parties might protect against disclosure in a way more likely to satisfy the Fourth Amendment’s original meaning.