2018 has been a crucial year for information privacy. From the Facebook scandal to the opening of the door for re-thinking the Fourth Amendment, privacy rights in the United States are on the brink of change. The Supreme Court plays a key role in shaping this process. And with two new conservative justices appointed by Donald Trump, many fear the Supreme Court will work to narrow the scope of civil rights. But, when it comes to information privacy, they may be wrong.
Current Supreme Court case law protects privacy in the Fourth Amendment context where a reasonable expectation of privacy exists. The Supreme Court considers the guiding principle for the Fourth Amendment to be that a search or seizure without a warrant is only a violation if it goes beyond what people would reasonably in terms of privacy.
“Reasonableness” is defined by the third-party doctrine. The doctrine establishes that, once you have voluntarily disclosed information to a third party, you no longer have a reasonable expectation of privacy over that information. This doctrine came into question this year with a case called Carpenter v. United States, where Timothy Carpenter argued that the police acquiring more than 150 days of his cellphone location data without a warrant violated his Fourth Amendment rights. In a groundbreaking decision, the court expanded privacy rights by carving out an exception to the third-party doctrine for cellphone tracking. This exception could die as quickly as it appeared or it could keep growing and change Fourth Amendment doctrine, depending on the composition of the new court.
So how will Brett Kavanaugh, who was sworn in as Supreme Court justice last week, affect how this plays out? During his tenure as an appellate judge, he voted for his appellate court not to hear United States v. Jones, a case about long-term GPS tracking that was the building block for Carpenter. He also ruled in a case called Klayman v. Obama that the mass collection of metadata by the NSA did not breach the Fourth Amendment because (like the geolocation of Jones and Carpenter) it was just metadata, a differentiation often made to strip certain pieces of personal information from privacy protection.
Kavanaugh’s views on metadata are representative of his general view of Fourth Amendment privacy: extremely deferential to the administration. They are probably also representative of his view towards information privacy in general. Coming from the D.C. circuit, most of his opinions are about government action and government regulation, and he has had little opportunity so far to discuss consumer protection issues. Given his general views about deference to the administration and given where he stands in the political spectrum, it would be unsurprising if he were equally restrictive towards them.
But here’s why, ultimately, that is unlikely to make a difference in the court’s position:
Kennedy, the justice Kavanaugh is replacing, was never a liberal with regards to Fourth Amendment privacy. He did not have an expansive view of the Fourth Amendment, and he was not the swing vote for close cases involving information privacy. For example, he dissented in Carpenter, siding with the conservative justices that, like Kavanaugh in Jones, aimed to reaffirm the third-party doctrine. Previously, he also voted together with conservative justices in Spokeo v. Robins that privacy injuries in themselves are not concrete and particularized enough to provide standing.
When Scalia was in the court, it was him, not Kennedy (the more frequent swing-vote), who sometimes joined the liberal justices to enhance the scope of Fourth Amendment privacy protection. Scalia wrote, for example, the majority vote in United States v. Jones, the case that Kavanaugh voted not to hear and that later led to the significant Fourth Amendment expansion that was Carpenter. Gorsuch seems to take a similar view to Scalia’s with regards to Fourth Amendment privacy. His dissent in Carpenter, for example, argues like a concurring vote that proposes a property-based theory of information privacy, similar to Scalia’s views. When an invasion of privacy aligns with some form of invasion of property, Gorsuch is likely to protect such rights, as was Scalia.
Chief Justice Roberts, who wrote the opinion in Carpenter, is now the most at-center justice on the political spectrum, with Kavanaugh to the right of everyone but Thomas. Therefore, he is expected to be the new swing vote. However, while Roberts will indeed be the new swing vote in most issues in the new court with Brett Kavanaugh in it, Gorsuch could be the new swing vote for information privacy law.
The new Supreme Court will dictate the expansion or shrinking of civil rights for the next generation. With Kavanaugh replacing Kennedy, many, if not most, things will change in the Supreme Court. But the direction of Fourth Amendment privacy will likely remain the same. Not because Kavanaugh has shown any sympathy for Fourth Amendment privacy or information privacy rights, but because Kennedy did not show any either.
Ignacio N. Cofone is an Assistant Professor at McGill University, where he teaches Privacy Law, and an Affiliate Faculty Fellow at the Yale Law School Information Society Project.
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