David R. Henderson  

Mea Culpa on Fourth Amendment Showdown

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On November 29, I argued that the legal authorities should have gotten a warrant if they wanted to access the information on where Timothy Carpenter made calls from. The basis for my argument was that getting the information without Carpenter's consent violated his Fourth Amendment rights.

I think I was wrong.

In the comments, Phil wrote:

But the records the police obtained where not Carpenter's records; they were the phone company's records. The law is well established (Smith v. Maryland) that when you share your information with a third party -- like a bank when you write a check, or the phone company when you dial a phone -- you can no longer say it is your private information. Exceptions, of course, exist under specific laws protecting school records and health records, but not phone records.

I think Phil is right that "you can no longer say it is your private information."

Five days after I wrote, my Hoover colleague Richard Epstein, an actual legal scholar (I just occasionally play one on EconLog--in this case, to my regret) laid out the issues nicely. I recommend his whole article, "Reasonable Searches in the Digital Age," Defining Ideas, December 4. This is actually an issue on which Richard managed to change my view substantially. My view is, at a minimum, in flux.


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CATEGORIES: Economics of Crime




COMMENTS (11 to date)
Peter Gerdes writes:

The problem with this response is that it basically completely eliminates the social value the 4th amendment was enacted to protect. After all, the same response can be used to explain why we don't have any 4th amendment right to data stored in the cloud (and indeed 4th amendment jurisprudence says we don't under the 3rd party doctrine).

The 4th amendment wasn't enacted to ensure some purely formal result about records that are in your possession. It was enacted because the founders felt there was an important social good served by not allowing the government to simply rifle through people's information looking for evidence of bad behavior. In particular, I submit that, in part, the goal of the 4th amendment is to make it difficult for the government to arrest people for having revolutionary or blasphemous thoughts in their private papers and correspondence. In other words the 4th amendment is as much about making it difficult to criminalize certain kinds of behavior that doesn't have a complaining victim as it is about protecting innocent people from having their papers searched (if the British hadn't ever prosecuted people based on the contents of their papers after such a search I doubt it would have seemed as compelling a right).

I mean compare this to what we do with the first amendment. We always take into account the fact that the underlying goal is to ensure a robust marketplace of ideas and free criticism of the government. Thus, the supreme court rejects interpretations that blindly follow precedent when it becomes clear they conflict with such goals. We need to do the same with the 4th amendment.

Thaomas writes:

Like most problems, Libertarian principles are not dispositive because the definition of what is one "property" is arbitrary.

Grant Gould writes:

I think there are two big problems with your (new) view:

(1) It says that expansions in division of labor -- the prerequisite for economic growth -- intrinsically contract the Fourth Amendment: The more we specialize our economy, the less the warrant requirement means. This seems seriously perverse, particularly in that the social trust that allows us to entrust third parties with this information is exactly the Trojan Horse that the government rides past constitutional walls, falsifying that very trust.

(2) (wearing my telecoms geek hat) In many cases the data in question would not be stored at all but for government mandates. Precise location data within a cell site is not required for call routing at all but for government E911 mandates, for instance. Nor does any telecommunications purpose require retaining that information for more than a few seconds or minutes. To say that the government can mandate a third party to collect and retain information and also that that information was voluntarily surrendered under those terms is a bit disingenuous.

David R Henderson writes:

@Grant Gould,
In many cases the data in question would not be stored at all but for government mandates. Precise location data within a cell site is not required for call routing at all but for government E911 mandates, for instance.
Good point. That, then, is the thing we should go after.
Nor does any telecommunications purpose require retaining that information for more than a few seconds or minutes.
Good point.
To say that the government can mandate a third party to collect and retain information and also that that information was voluntarily surrendered under those terms is a bit disingenuous.
Disingenuous on whose part? If mine, I don’t like being accused of dishonesty when a simple Occam’s razor analysis would instead led to the conclusion that I was simply ignorant.
If you’re accusing me, I would point out that you don’t even know me and you are way out of line, buddy.

Phil writes:

Peter Gerdes wrote:

The 4th amendment wasn't enacted to ensure some purely formal result about records that are in your possession. It was enacted because the founders felt there was an important social good served by not allowing the government to simply rifle through people's information looking for evidence of bad behavior. In particular, I submit that, in part, the goal of the 4th amendment is to make it difficult for the government to arrest people for having revolutionary or blasphemous thoughts in their private papers and correspondence.

The third party doctrine only permits the government to know that you made a phone call (and with cell technology, from where); it does not give the government access to the content of the phone call. It is analogous to a witness seeing you have a conversation with someone on the street, but unable to hear what was said.

@ Grant Gould -- there certainly is a legitimate telecommunications purpose for retaining the information. How else would the company analyze the volume of data demands at various locations and times in order to more efficiently manage its infrastructure? Water and electric companies retain such information for the same purposes.

David R Henderson writes:

@Phil,
The third party doctrine only permits the government to know that you made a phone call (and with cell technology, from where); it does not give the government access to the content of the phone call. It is analogous to a witness seeing you have a conversation with someone on the street, but unable to hear what was said.
Good point, Phil. Richard Epstein makes that point too.
Grant Gould -- there certainly is a legitimate telecommunications purpose for retaining the information. How else would the company analyze the volume of data demands at various locations and times in order to more efficiently manage its infrastructure? Water and electric companies retain such information for the same purposes.
But Grant Gould is claiming that much of the data wouldn’t be stored were it not for government mandates. I don’t know the answer to the factual question, but the answer should be relatively easy to check.

Grant Gould writes:

David -- I apologize for giving the impression that I was calling you disingenuous; nothing could be farther from my intention! I meant to say that the legal argument made by the government in such cases is disingenuous.

Sorry!


(As a note of background, and of confession, I worked in building cell network base station software for some years, and incidentally implemented some of the regulatory-compliance phone-locating technology in particular; I have a substantial qualm of conscience today over having done such work. Worse, I have reason to believe that some of the current cell-tower spoofing systems that use E911 data to pinpoint phones may use code that I wrote. If there are unclean hands here, they are mine.)

David R Henderson writes:

@Grant Gould,
David -- I apologize for giving the impression that I was calling you disingenuous; nothing could be farther from my intention! I meant to say that the legal argument made by the government in such cases is disingenuous.
Thank you, Grant. And I, in turn, apologize for my quick reaction.
Interesting story about your background, by the way.
A regular commenter, Jon Murphy, emailed me a few minutes to say I might have misread you. Jon turns out to have been right.

Robert Simmons writes:

If I as a private citizen were to follow someone around 24 hours a day for a week or longer, wouldn’t I at some point be considered to be harassing them, to the point where that person could get the police involved to stop me? Attaching a GPS to my car without a warrant seems like a similar situation.

David R Henderson writes:

@Robert Simmons,
If I as a private citizen were to follow someone around 24 hours a day for a week or longer, wouldn’t I at some point be considered to be harassing them, to the point where that person could get the police involved to stop me?
I think so.
Attaching a GPS to my car without a warrant seems like a similar situation.
I agree. Also, just as I cannot violate your property rights by, say, attaching a poppy to your chest, no one should be able to violate your property rights by (without a warrant) attaching a GPS device to your car.

Geoffrey writes:

Could a cell phone company advertise "we will only give out your records with a warrant"
If they cannot, that seems like warrantless searches for everybody.

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