Can Electronic Surveillance Constitute a Search of Private Property Under the 4th Amendment? Gorsuch’s Comments Raise New Questions.

At oral argument in Carpenter v. United States, now awaiting final decision, Justice Gorsuch raised the possibility that individuals have a property right in their data. Specifically, Gorsuch suggested that a customer of a cellular provider had a property interest in location data that police had obtained from the provider without a warrant. This is relevant in a Fourth Amendment context because government trespass against private property is a form of “search.” But there is a different property interest relevant to electronic surveillance that may have a stronger basis in trespass law: the property right of corporations in the physical computer equipment they use to store customer data.

In 2012, the Supreme Court in United States v. Jones held that any government surveillance involving trespass constitutes a search. According to Justice Alito’s concurrence, this holding implies that “search” should encompass principles from electronic trespass law, which treats, for example, hacking and crawling, as physical invasions of a private server. Alito’s interpretation, if correct, would have significant consequences for Fourth Amendment law as applied to electronic surveillance programs, some of which compel corporations to provide the government with access to private servers and infrastructure. Under Alito’s reading of Jones, not just the surveillance at issue in Carpenter, but also surveillance under §702 of the Foreign Intelligence Surveillance Act, arguably constitute trespassory searches.

I. Current Fourth Amendment Law Under United States v. Jones

Jones established that the definition of “search” in the Fourth Amendment is a combination of two historical definitions espoused by the Supreme Court. According to an older meaning expounded in Olmstead v. United States, a search necessarily involves a physical invasion of property. Katz v. United States later defined “search” in terms of the privacy of persons and held that, for Fourth Amendment purposes, a search may occur without trespass when the government has violated a “reasonable expectation of privacy.” In 2012, the Supreme Court in United States v. Jones held that a Fourth Amendment “search” encompasses both trespassory searches and invasions of a “reasonable expectation of privacy.” In Jones, the government placed a tracking device on the undercarriage of a jeep without a warrant. The government, appealing to the Katz test, argued that placing the GPS did not constitute a search because both the underside of the vehicle and the vehicle’s movements were visible to the public, thus precluding a “reasonable expectation of privacy” on the part of the defendant. In an opinion written by the late Justice Scalia, the Court held that the traditional trespassory test survived Katz and that placing the GPS on the vehicle amounted to a trespassory search.

II. Alito’s Concurrence and Electronic Trespass Law

In his concurrence in Jones, Justice Alito argued, with apparent disapproval, that the majority’s holding logically would entail classifying some forms of electronic surveillance as trespassory searches. The reason for this is that a body of case law originating in the 90s classifies non-consensual contact from electronic signals, such as through hacking or crawling, as trespass to chattel. This branch of trespass law originates in a 1996 California Court of Appeal case, Thrifty-Tel, Inc. v. Bezeneck, in which the court found an individual who hacked into the personal telephone accounts of customers of a long-distance telephone carrier liable for trespass to chattels against the company. As later reasoned in Ticketmaster v., a federal court case involving crawling of an internal web page, nonconsensual contact from electronic signals constitutes a trespass because it is essentially a physical invasion, no different from “taking a hammer to a piece of machinery.” The court reasoned that “the computer is a piece of tangible personal property. It is operated by mysterious electronic impulses which did not exist when the law of trespass to chattels was developed, but the principles should not be too different.”

III. Alito’s Interpretation of Jones Applied to Electronic Surveillance

The principle established in Jones under Alito’s reading could have radical implications for Fourth Amendment jurisprudence in the digital age. In Carpenter, for instance, the cellphone companies involved could have argued that the extraction of customer data violates their property right in the servers or other computer equipment those companies use to store location data. Because the process in Carpenter was non-consensual (by judicial order), the collection of customer location data amounted to a trespass and thus a search.

IV. FISA 702 Surveillance

Surveillance under Section 702 of the Foreign Intelligence Surveillance Act, one of the NSA’s largest surveillance programs, could be opposed by telecommunications companies with the same argument. FISA Section 702 authorizes the executive branch to collect one-end foreign telephone and internet communications when data is located inside the United States, under the control of telecommunications companies—companies, for instance, that provide direct services to customers or own communications infrastructure. The FISA 702 process is initiated when the executive branch issues a directive compelling companies like AT&T and Verizon to grant the government access to data contained in private servers or infrastructure. Private companies are in practice compelled to access their own system on the government’s behalf. The government then searches the data the company extracts—typically a legally overbroad selection—for communications connected to specific “identifiers,” such as e-mail addresses. Under the reading of Jones suggested, this process, because it involves non-consensual use of privately owned computer equipment, would constitute a trespassory search of telecommunications companies’ property.

V. Conclusion

Following in Justice Scalia’s footsteps, Gorsuch emphasizes the role of property rights in the Fourth Amendment’s protection against unwarranted search and seizure. There may be some way to incorporate a privacy interest in personal data into Fourth Amendment jurisprudence, but the concept of a property right in data does not have obvious roots in the common law, as Jones requires. On the other hand, in light of Jones, electronic trespass doctrine already provides a solid basis for a trespass-based Fourth Amendment argument—one based on the corporation’s, as opposed to the customer’s property right.

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