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    An infrared camera system on a U.S. Air Force helicopter. Scalia challenged the legality of domestic searches using infrared cameras. Photo via U.S. Air Force

    How Justice Scalia Defended Your Digital Privacy—and Also Held It Back

    Written by Daniel J. Solove

    A new Supreme Court justice could tip the scales away from the controversial third party doctrine.

    The passing of Justice Antonin Scalia has brought a wave of speculation about current and future U.S. Supreme Court cases. One area where there might be a significant impact will be the 4th Amendment, which provides the primary constitutional protection against government surveillance and information gathering. A new justice could usher in a dramatic expansion in 4th Amendment protections against government surveillance.

    Justice Scalia was not antagonistic to the 4th Amendment, and in many cases he supported 4th Amendment protections. Most notably, in Kyllo v. United States, 533 U.S. 27 (2001), Justice Scalia wrote for the majority in a 5-4 decision holding that the 4th Amendment required a warrant to use thermal sensors to detect heat patterns emanating from inside a home. Justice Scalia also wrote the majority opinion in United States v. Jones, 132 S. Ct. 945 (2012), holding that the police needed a warrant to affix a GPS surveillance device to a car.

    Kyllo and Jones are two of the most important U.S. Supreme Court cases of this century involving technology, and both come out in favor of 4th Amendment protection. So why would a new justice potentially lead to more 4th Amendment protection?

    Justice Antonin Scalia Speaks with Staff at the U.S. Mission in Geneva. Photo via WikiCommons

    Justice Scalia hearkened back to a very old test for when a search falls under the scope of the 4th Amendment

    The reason is that Justice Scalia had a narrow view of original intent. Kyllo turned heavily on the fact that the thermal sensor was used on a home—the quintessential private place to the Framers of the Constitution. Scalia's opinion in Jones turned on the placement of the GPS device on a car—a trespass to a person's property. Hearkening back to a very old test for when a search falls under the scope of the 4th Amendment, Justice Scalia focused on the fact that putting the device on the car was a physical trespass. This led to a very narrow holding. Five justices in concurring opinions suggested a much broader approach, holding that people had a reasonable expectation of privacy in not being exposed to very extensive surveillance—even in public.

    The Coming Demise of the Third Party Doctrine

    The first issue in a 4th Amendment case is whether a particular instance of government surveillance or data gathering activity even falls under the 4th Amendment's scope. If the 4th Amendment is implicated, then the 4th Amendment generally provides protection by requiring the government to obtain a warrant supported by probable cause—the government must justify its search, and the judiciary evaluates. Searches are circumscribed and limited. The prevailing test for whether the 4th Amendment applies is whether there is a reasonable expectation of privacy in what the government is searching.

    When the 4th Amendment applies, a warrant and probable cause aren't always required—there are a lot of exceptions—but if the 4th Amendment doesn't apply, then there is often no protection at all against a particular instance of government surveillance unless there is a federal statute restricting it. State constitutions and state statutes can limit state law enforcement, but not federal officials. An enormous amount of government surveillance and information gathering is not regulated by federal statute, so if the 4th Amendment doesn't apply, there might be nothing to require any oversight or limitation on these government surveillance powers. Thus the determination of whether certain government surveillance measures fall within the scope of the 4th Amendment is often one of enormous significance.

    A new justice replacing Justice Scalia might take a more expansive approach to the applicability of the 4th Amendment, and be the vote that tips the scales against a controversial doctrine that has dramatically limited the scope of the 4th Amendment in the digital age: the third party doctrine.

    Under the third party doctrine, the U.S. Supreme Court has held that that there is no reasonable expectation in privacy for information known or exposed to third parties. In United States v. Miller, 425 U.S. 435 (1976), the Court held that there is no reasonable expectation of privacy in financial records maintained by one’s bank because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.” In Smith v. Maryland, 442 U.S. 735 (1979), the Court concluded that there was no reasonable expectation of privacy when the government obtained a list of phone numbers a person dialed from the phone company because people “know that they must convey numerical information to the phone company” and cannot “harbor any general expectation that the numbers they dial will remain secret.”

    The implications of the third party doctrine for the digital age are enormous. Today, so much of our data is maintained by third parties. Countless companies maintain records about us. We store documents and photos with cloud service providers. Credit card companies keep detailed records about our purchases. Our location information is available to telecommunications companies. Our Web surfing activity is in the hands of ISPs. Merchants such as Amazon.com have records about our purchases of books and movies and other things. The government no longer needs to enter a person's home to learn about that person—the books that person is reading, the person's communications, hobbies, interests, intellectual exploration, and more can all be learned from third party records. I wonder whether the justices writing in the 1970s had any idea of how profound the implications of the third party doctrine would be in today's age.

    The third party doctrine is one of the main reasons why the 4th Amendment has often not had much relevance when digital data is involved. Several courts have held that broad government surveillance programs, including some of the NSA's surveillance programs, escape the reach of 4th Amendment protection due to the third party doctrine.

    A GPS tracking device like that involved in the Jones case. Photo via iFixit

    Actually, Justice Scalia's opinion in Jones provides very little protection against government location tracking

    Justice Scalia's opinion in Jones actually provides very little protection against government location tracking. Only the physical affixing of a GPS device to a car violates the 4th Amendment according to his view. But under the third party doctrine, the government can readily obtain GPS data from third parties that provide GPS services without a physical trespass to the car. People's location can also be tracked from their phones. Scalia's view misses a key fact: It's not the device that matters; it's the data.

    Jones is a bizarre case because five justices wrote or joined concurring opinions that suggested a much bolder approach to the reasonable expectation of privacy. Until Jones, U.S. Supreme Court cases had generally held in a rather binary way that there is no reasonable expectation of privacy from surveillance in public places. The five concurring justices articulated a different view that extensive surveillance—even in public—could fall under the scope of the 4th Amendment.

    Justice Sotomayor, writing a solo concurring opinion, explicitly called the third party doctrine into question. She stated that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily exposed to third parties. This approach is ill suited to the digital age."

    The other concurring opinion, authored by Justice Alito, doesn't say anything about the third party doctrine. My sense is that Justice Alito might be tepid about how far he would expand 4th Amendment protection. The other three justices joining Alito's concurrence—Justices Ginsburg, Breyer, and Kagan—all might be good candidates to join Justice Sotomayor in reversing the third party doctrine sometime in the future. One more vote is needed for five votes, and that could be the demise of the third party doctrine.

    The end of the third party doctrine would herald a dramatic increase in 4th Amendment protection in today's digital age. The third party doctrine is, in my view, the most significant and wrongheaded impediment to effective 4th Amendment regulation of government surveillance. (For more about my concerns about the third party doctrine, see my 2002 Southern California Law Review article, Digital Dossiers and the Dissipation of Fourth Amendment Privacy.)

    Clapper and NSA Surveillance

    Another key case turning on Justice Scalia's vote was Clapper v. Amnesty International, 568 U.S. __ (2013). There the Supreme Court held, with Justice Alito writing for the majority, that plaintiffs lacked standing to challenge NSA surveillance because they couldn't know for sure that they were subjected to it. The fact of whether they were under surveillance was classified, so the government had quite the chutzpah to argue that the plaintiffs's case should be dismissed because they couldn't prove they were under surveillance.

    The plaintiffs put forth evidence that they were very likely under surveillance and claimed that they were harmed because they had to expend time and money to take measures to avoid the surveillance. The U.S. Supreme Court held that they failed to show the required injury for standing because all they couldn't confirm the surveillance with certainty and their evasive measures were just an attempt to "manufacture standing based on hypothetical future harm." Justice Scalia was in the majority. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented. So a change in Scalia's vote would mean the case would come out the other way 5-4.

    NSA Utah Data Center. Photo via Parker Higgins / EFF

    A different outcome on Clapper would have a significant impact on future cases challenging government surveillance. It would also have an impact on data breach litigation cases, which often cite to Clapper to hold that plaintiffs whose data is compromised in a data breach lack standing to sue because they are not yet harmed.

    But would the Supreme Court overrule Clapper so soon after it was decided? Ironically, perhaps, Justice Scalia would have no problem with that.

    Dissenting in South Carolina v. Gathers, 490 U.S. 95 (1989), Justice Scalia wrote:

    Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. . . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.

    The U.S. Supreme Court appears to be very close to making some dramatic changes in 4th Amendment law. With Justice Scalia's passing, a sometimes-champion of the 4th Amendment has been lost. Will the next justice also have a narrow version of originalism or will he or she have a more progressive approach? If the latter, we might see some dramatic shifts in 4th Amendment protection of government surveillance.

    Daniel J. Solove is the John Harlan Marshall Research Professor of Law at the George Washington University Law School. He founded TeachPrivacy, a company providing privacy and data security training.