SUPREME COURT OF THE UNITED STATES
TIMOTHY IVORY CARPENTER, PETITIONER v.
on writ of certiorari to the united states court of appeals for the sixth circuit
[June 22, 2018]
Justice Alito, with whom Justice Thomas joins, dissenting.
I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of
Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.
First, the Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and produce specified documents. The former, which intrudes on personal privacy far more deeply, requires probable cause; the latter does not. Treating an order to produce like an actual search, as today’s decision does, is revolutionary. It violates both the original understanding of the
Fourth Amendment and more than a century of Supreme Court precedent. Unless it is somehow restricted to the particular situation in the present case, the Court’s move will cause upheaval. Must every grand jury subpoena duces tecum
be supported by probable cause? If so, investigations of terrorism, political corruption, white-collar crime, and many other offenses will be stymied. And what about subpoenas and other document-production orders issued by administrative agencies? See, e.g.
15 U. S. C. §57b–1(c) (Federal Trade Commission); §§77s(c), 78u(a)–(b) (Securities and Exchange Commission);
29 U. S. C. §657(b) (Occupational Safety and Health Administration); 29 CFR §1601.16(a)(2) (2017) (Equal Employment Opportunity Commission).
Second, the Court allows a defendant to object to the search of a third party’s property. This also is revolutionary. The
Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects” (emphasis added), not the persons, houses, papers, and effects of others. Until today, we have been careful to heed this fundamental feature of the Amendment’s text. This was true when the
Fourth Amendment was tied to property law, and it remained true after Katz
v. United States
389 U. S. 347 (1967), broadened the Amendment’s reach.
By departing dramatically from these fundamental principles, the Court destabilizes long-established
Fourth Amendment doctrine. We will be making repairs—or picking up the pieces—for a long time to come.
Today the majority holds that a court order requiring the production of cell-site records may be issued only after the Government demonstrates probable cause. See ante
, at 18. That is a serious and consequential mistake. The Court’s holding is based on the premise that the order issued in this case was an actual “search” within the meaning of the
Fourth Amendment, but that premise is inconsistent with the original meaning of the
Fourth Amendment and with more than a century of precedent.
The order in this case was the functional equivalent of a subpoena for documents, and there is no evidence that these writs were regarded as “searches” at the time of the founding. Subpoenas duces tecum
and other forms of compulsory document production were well known to the founding generation. Blackstone dated the first writ of subpoena to the reign of King Richard II in the late 14th century, and by the end of the 15th century, the use of such writs had “become the daily practice of the [Chancery] court.” 3 W. Blackstone, Commentaries on the Laws of England 53 (G. Tucker ed. 1803) (Blackstone). Over the next 200 years, subpoenas would grow in prominence and power in tandem with the Court of Chancery, and by the end of Charles II’s reign in 1685, two important innovations had occurred.
First, the Court of Chancery developed a new species of subpoena. Until this point, subpoenas had been used largely to compel attendance and oral testimony from witnesses; these subpoenas correspond to today’s subpoenas ad testificandum
. But the Court of Chancery also improvised a new version of the writ that tacked onto a regular subpoena an order compelling the witness to bring certain items with him. By issuing these so-called subpoenas duces tecum
, the Court of Chancery could compel the production of papers, books, and other forms of physical evidence, whether from the parties to the case or from third parties. Such subpoenas were sufficiently commonplace by 1623 that a leading treatise on the practice of law could refer in passing to the fee for a “Sub pœna
of Ducas tecum
” (seven shillings and two pence) without needing to elaborate further. T. Powell, The Attourneys Academy 79 (1623). Subpoenas duces tecum
would swell in use over the next century as the rules for their application became ever more developed and definite. See, e.g.
1 G. Jacob, The Compleat Chancery-Practiser 290 (1730) (“The Subpoena duces tecum
is awarded when the Defendant has confessed by his Answer that he hath such Writings in his Hands as are prayed by the Bill to be discovered or brought into Court”).
Second, although this new species of subpoena had its origins in the Court of Chancery, it soon made an appearance in the work of the common-law courts as well. One court later reported that “[t]he Courts of Common law . . . employed the same or similar means . . . from the time of Charles the Second at least.” Amey
, 9 East. 473, 484, 103 Eng. Rep. 653, 658 (K. B. 1808).
By the time Blackstone published his Commentaries on the Laws of England in the 1760’s, the use of subpoenas duces tecum
had bled over substantially from the courts of equity to the common-law courts. Admittedly, the transition was still incomplete: In the context of jury trials, for example, Blackstone complained about “the want of a compulsive power for the production of books and papers belonging to the parties.” Blackstone 381; see also, e.g.
, 19 State Trials 1029, 1073 (K. B. 1765) (“I wish some cases had been shewn, where the law forceth evidence out of the owner’s custody by process. [But] where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action”). But Blackstone found some comfort in the fact that at least those documents “[i]n the hands of third persons . . . can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpoena
, which is then called a subpoena duces tecum
.” Blackstone 381; see also, e.g.
, 4 Esp. 256, 257, 170 Eng. Rep. 711 (N. P. 1803) (third-party subpoena duces tecum
, 3 T. R. 579, 580, 100 Eng. Rep. 743, 744 (K. B. 1790) (third-party document production). One of the primary questions outstanding, then, was whether common-law courts would remedy the “defect[s]” identified by the Commentaries, and allow parties to use subpoenas duces tecum
not only with respect to third parties but also with respect to each other. Blackstone 381.
That question soon found an affirmative answer on both sides of the Atlantic. In the United States, the First Congress established the federal court system in the Judiciary Act of 1789. As part of that Act, Congress authorized “all the said courts of the United States . . . in the trial of actions at law, on motion and due notice thereof being given, to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery.” §15,
82. From that point forward, federal courts in the United States could compel the production of documents regardless of whether those documents were held by parties to the case or by third parties.
In Great Britain, too, it was soon definitively established that common-law courts, like their counterparts in equity, could subpoena documents held either by parties to the case or by third parties. After proceeding in fits and starts, the King’s Bench eventually held in Amey
that the “writ of subpœna duces tecum [is] a writ of compulsory obligation and effect in the law.” 9 East., at 486, 103 Eng. Rep., at 658. Writing for a unanimous court, Lord Chief Justice Ellenborough explained that “[t]he right to resort to means competent to compel the production of written, as well as oral, testimony seems essential to the very existence and constitution of a Court of Common Law.” Id.,
at 484, 103 Eng. Rep., at 658. Without the power to issue subpoenas duces tecum
, the Lord Chief Justice observed, common-law courts “could not possibly proceed with due effect.” Ibid.
The prevalence of subpoenas duces tecum
at the time of the founding was not limited to the civil context. In criminal cases, courts and prosecutors were also using the writ to compel the production of necessary documents. In Rex
, 3 Burr. 1687, 97 Eng. Rep. 1047 (K. B. 1765), for example, the King’s Bench considered the propriety of a subpoena duces tecum
served on an attorney named Samuel Dixon. Dixon had been called “to give evidence before the grand jury of the county of Northampton” and specifically “to produce three vouchers . . . in order to found a prosecution by way of indictment against [his client] Peach . . . for forgery.” Id.,
at 1687, 97 Eng. Rep., at 1047–1048. Although the court ultimately held that Dixon had not needed to produce the vouchers on account of attorney-client privilege, none of the justices expressed the slightest doubt about the general propriety of subpoenas duces tecum
in the criminal context. See id.,
at 1688, 97 Eng. Rep., at 1048. As Lord Chief Justice Ellenborough later explained, “[i]n that case no objection was taken to the writ, but to the special circumstances under which the party possessed the papers; so that the Court may be considered as recognizing the general obligation to obey writs of that description in other cases.” Amey
, at 485, 103 Eng. Rep., at 658; see also 4 J. Chitty, Practical Treatise on the Criminal Law 185 (1816) (template for criminal subpoena duces tecum
shows, subpoenas duces tecum
were routine in part because of their close association with grand juries. Early American colonists imported the grand jury, like so many other common-law traditions, and they quickly flourished. See United States
414 U. S. 338, 342–343 (1974). Grand juries were empaneled by the federal courts almost as soon as the latter were established, and both they and their state counterparts actively exercised their wide-ranging common-law authority. See R. Younger, The People’s Panel 47–55 (1963). Indeed, “the Founders thought the grand jury so essential . . . that they provided in the
Fifth Amendment that federal prosecution for serious crimes can only be instituted by ‘a presentment or indictment of a Grand Jury.’ ” Calandra
, at 343.
Given the popularity and prevalence of grand juries at the time, the Founders must have been intimately familiar with the tools they used—including compulsory process—to accomplish their work. As a matter of tradition, grand juries were “accorded wide latitude to inquire into violations of criminal law,” including the power to “compel the production of evidence or the testimony of witnesses as [they] conside[r] appropriate.” Ibid.
Long before national independence was achieved, grand juries were already using their broad inquisitorial powers not only to present and indict criminal suspects but also to inspect public buildings, to levy taxes, to supervise the administration of the laws, to advance municipal reforms such as street repair and bridge maintenance, and in some cases even to propose legislation. Younger, supra
, at 5–26. Of course, such work depended entirely on grand juries’ ability to access any relevant documents.
Grand juries continued to exercise these broad inquisitorial powers up through the time of the founding. See Blair
v. United States
250 U. S. 273, 280 (1919) (“At the foundation of our Federal Government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power”). In a series of lectures delivered in the early 1790’s, Justice James Wilson crowed that grand juries were “the peculiar boast of the common law” thanks in part to their wide-ranging authority: “All the operations of government, and of its ministers and officers, are within the compass of their view and research.” 2 J. Wilson, The Works of James Wilson 534, 537 (R. McCloskey ed. 1967). That reflected the broader insight that “[t]he grand jury’s investigative power must be broad if its public responsibility is adequately to be discharged.” Calandra
, at 344.
Compulsory process was also familiar to the founding generation in part because it reflected “the ancient proposition of law” that “ ‘ “the public . . . has a right to every man’s evidence.” ’ ” United States
418 U. S. 683, 709 (1974); see also ante
, at 10 (Kennedy, J., dissenting). As early as 1612, “Lord Bacon is reported to have declared that ‘all subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery.’ ” Blair
, at 279–280. That duty could be “onerous at times,” yet the Founders considered it “necessary to the administration of justice according to the forms and modes established in our system of government.” Id.,
at 281; see also Calandra
, at 345.
Talk of kings and common-law writs may seem out of place in a case about cell-site records and the protections afforded by the
Fourth Amendment in the modern age. But this history matters, not least because it tells us what was on the minds of those who ratified the
Fourth Amendment and how they understood its scope. That history makes it abundantly clear that the
Fourth Amendment, as originally understood, did not apply to the compulsory production of documents at all.
Fourth Amendment does not regulate all methods by which the Government obtains documents. Rather, it prohibits only those “searches and seizures” of “persons, houses, papers, and effects” that are “unreasonable.” Consistent with that language, “at least until the latter half of the 20th century” “our
Fourth Amendment jurisprudence was tied to common-law trespass.” United States
565 U. S. 400, 405 (2012). So by its terms, the
Fourth Amendment does not apply to the compulsory production of documents, a practice that involves neither any physical intrusion into private space nor any taking of property by agents of the state. Even Justice Brandeis—a stalwart proponent of construing the
Fourth Amendment liberally—acknowledged that “under any ordinary construction of language,” “there is no ‘search’ or ‘seizure’ when a defendant is required to produce a document in the orderly process of a court’s procedure.” Olmstead
v. United States
277 U. S. 438, 476 (1928) (dissenting opinion).[1
Nor is there any reason to believe that the Founders intended the
Fourth Amendment to regulate courts’ use of compulsory process. American colonists rebelled against the Crown’s physical invasions of their persons and their property, not against its acquisition of information by any and all means. As Justice Black once put it, “[t]he
Fourth Amendment was aimed directly at the abhorred practice of breaking in, ransacking and searching homes and other buildings and seizing people’s personal belongings without warrants issued by magistrates.” Katz
, 389 U. S., at 367 (dissenting opinion). More recently, we have acknowledged that “the
Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley
, 573 U. S. ___, ___ (2014) (slip op., at 27).
General warrants and writs of assistance were noxious not because they allowed the Government to acquire evidence in criminal investigations, but because of the means
by which they permitted the Government to acquire that evidence. Then, as today, searches could be quite invasive. Searches generally begin with officers “mak[ing] nonconsensual entries into areas not open to the public.” Donovan
v. Lone Steer, Inc.
464 U. S. 408, 414 (1984). Once there, officers are necessarily in a position to observe private spaces generally shielded from the public and discernible only with the owner’s consent. Private area after private area becomes exposed to the officers’ eyes as they rummage through the owner’s property in their hunt for the object or objects of the search. If they are searching for documents, officers may additionally have to rifle through many other papers—potentially filled with the most intimate details of a person’s thoughts and life—before they find the specific information they are seeking. See Andresen
427 U. S. 463, 482, n. 11 (1976). If anything sufficiently incriminating comes into view, officers seize it. Horton
496 U. S. 128, 136–137 (1990). Physical destruction always lurks as an underlying possibility; “officers executing search warrants on occasion must damage property in order to perform their duty.” Dalia
v. United States
441 U. S. 238, 258 (1979); see, e.g.
, United States
523 U. S. 65, 71–72 (1998) (breaking garage window); United States
456 U. S. 798, 817–818 (1982) (ripping open car upholstery); Brown
v. Battle Creek Police Dept.
, 844 F. 3d 556, 572 (CA6 2016) (shooting and killing two pet dogs); Lawmaster
, 125 F. 3d 1341, 1350, n. 3 (CA10 1997) (breaking locks).
Compliance with a subpoena duces tecum
requires none of that. A subpoena duces tecum
permits a subpoenaed individual to conduct the search for the relevant documents himself, without law enforcement officers entering his home or rooting through his papers and effects. As a result, subpoenas avoid the many incidental invasions of privacy that necessarily accompany any actual search. And it was those
invasions of privacy—which, although incidental, could often be extremely intrusive and damaging—that led to the adoption of the
Neither this Court nor any of the parties have offered the slightest bit of historical evidence to support the idea that the
Fourth Amendment originally applied to subpoenas duces tecum
and other forms of compulsory process. That is telling, for as I have explained, these forms of compulsory process were a feature of criminal (and civil) procedure well known to the Founders. The Founders would thus have understood that holding the compulsory production of documents to the same standard as actual searches and seizures would cripple the work of courts in civil and criminal cases alike. It would be remarkable to think that, despite that knowledge, the Founders would have gone ahead and sought to impose such a requirement. It would be even more incredible to believe that the Founders would have imposed that requirement through the inapt vehicle of an amendment directed at different concerns. But it would blink reality entirely to argue that this entire process happened without anyone saying the least thing about it
—not during the drafting of the Bill of Rights, not during any of the subsequent ratification debates, and not for most of the century that followed. If the Founders thought the
Fourth Amendment applied to the compulsory production of documents, one would imagine that there would be some
founding-era evidence of the
Fourth Amendment being applied to the compulsory production of documents. Cf. Free Enterprise Fund
v. Public Company Accounting Oversight Bd.
561 U. S. 477, 505 (2010); Printz
v. United States
521 U. S. 898, 905 (1997). Yet none has been brought to our attention.
Of course, our jurisprudence has not stood still since 1791. We now evaluate subpoenas duces tecum
and other forms of compulsory document production under the
Fourth Amendment, although we employ a reasonableness standard that is less demanding than the requirements for a warrant. But the road to that doctrinal destination was anything but smooth, and our initial missteps—and the subsequent struggle to extricate ourselves from their consequences—should provide an object lesson for today’s majority about the dangers of holding compulsory process to the same standard as actual searches and seizures.
For almost a century after the
Fourth Amendment was enacted, this Court said and did nothing to indicate that it might regulate the compulsory production of documents. But that changed temporarily when the Court decided Boyd
v. United States
116 U. S. 616 (1886), the first—and, until today, the only—case in which this Court has ever held the compulsory production of documents to the same standard as actual searches and seizures.
Court held that a court order compelling a company to produce potentially incriminating business records violated both the Fourth and the
Fifth Amendments. The Court acknowledged that “certain aggravating incidents of actual search and seizure, such as forcible entry into a man’s house and searching amongst his papers, are wanting” when the Government relies on compulsory process. Id.
, at 622. But it nevertheless asserted that the
Fourth Amendment ought to “be liberally construed,” id.
, at 635, and further reasoned that compulsory process “effects the sole object and purpose of search and seizure” by “forcing from a party evidence against himself,” id.
, at 622. “In this regard,” the Court concluded, “the Fourth and
Fifth Amendments run almost into each other.” Id.
, at 630. Having equated compulsory process with actual searches and seizures and having melded the
Fourth Amendment with the Fifth, the Court then found the order at issue unconstitutional because it compelled the production of property to which the Government did not have superior title. See id.
, at 622–630.
In a concurrence joined by Chief Justice Waite, Justice Miller agreed that the order violated the
Fifth Amendment, id.
, at 639, but he strongly protested the majority’s invocation of the
Fourth Amendment. He explained: “[T]here is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers . . . , authorizes an unreasonable search or seizure of the house, papers, or effects of that party. There is in fact no search and no seizure.” Ibid.
“If the mere service of a notice to produce a paper . . . is a search,” Justice Miller concluded, “then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the Constitution was made.” Id.,
was replete with stirring rhetoric, its reasoning was confused from start to finish in a way that ultimately made the decision unworkable. See 3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §8.7(a) (4th ed. 2015). Over the next 50 years, the Court would gradually roll back Boyd
’s erroneous conflation of compulsory process with actual searches and seizures.
That effort took its first significant stride in Hale
201 U. S. 43 (1906), where the Court found it “quite clear” and “conclusive” that “the search and seizure clause of the
Fourth Amendment was not intended to interfere with the power of courts to compel, through a subpœna duces tecum
, the production, upon a trial in court, of documentary evidence.” Id.,
at 73. Without that writ, the Court recognized, “it would be ‘utterly impossible to carry on the administration of justice.’ ” Ibid.
did not entirely liberate subpoenas duces tecum
Fourth Amendment constraints. While refusing to treat such subpoenas as the equivalent of actual searches, Hale
concluded that they must not be unreasonable. And it held that the subpoena duces tecum
at issue was “far too sweeping in its terms to be regarded as reasonable.” Id.,
at 76. The Hale
Court thus left two critical questions unanswered: Under the
Fourth Amendment, what makes the compulsory production of documents “reasonable,” and how does that standard differ from the one that governs actual searches and seizures?
The Court answered both of those questions definitively in Oklahoma Press Publishing Co.
327 U. S. 186 (1946), where we held that the
Fourth Amendment regulates the compelled production of documents, but less stringently than it does full-blown searches and seizures. Oklahoma Press
began by admitting that the Court’s opinions on the subject had “perhaps too often . . . been generative of heat rather than light,” “mov[ing] with variant direction” and sometimes having “highly contrasting” “emphasis and tone.” Id.,
at 202. “The primary source of misconception concerning the
Fourth Amendment’s function” in this context, the Court explained, “lies perhaps in the identification of cases involving so-called ‘figurative’ or ‘constructive’ search with cases of actual search and seizure.” Ibid.
But the Court held that “the basic distinction” between the compulsory production of documents on the one hand, and actual searches and seizures on the other, meant that two different standards had to be applied. Id.,
Having reversed Boyd
’s conflation of the compelled production of documents with actual searches and seizures, the Court then set forth the relevant
Fourth Amendment standard for the former. When it comes to “the production of corporate or other business records,” the Court held that the
Fourth Amendment “at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ‘particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant.” Oklahoma Press
, at 208. Notably, the Court held that a showing of probable cause was not necessary so long as “the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.” Id.,
Since Oklahoma Press
, we have consistently hewed to that standard. See, e.g.
, Lone Steer, Inc.
, 464 U. S., at 414–415; United States
425 U. S. 435, 445–446 (1976); California Bankers Assn.
416 U. S. 21, 67 (1974); United States
410 U. S. 1, 11–12 (1973); See
387 U. S. 541, 544 (1967); United States
379 U. S. 48, 57–58 (1964); McPhaul
v. United States
364 U. S. 372, 382–383 (1960); United States
v. Morton Salt Co.
338 U. S. 632, 652–653 (1950); cf. McLane Co.
, 581 U. S. ___, ___ (2017) (slip op., at 11). By applying Oklahoma Press
and thereby respecting “the traditional distinction between a search warrant and a subpoena,” Miller
, at 446, this Court has reinforced “the basic compromise” between “the public interest” in every man’s evidence and the private interest “of men to be free from officious meddling.” Oklahoma Press
, at 213.
Today, however, the majority inexplicably ignores the settled rule of Oklahoma Press
in favor of a resurrected version of Boyd
. That is mystifying. This should have been an easy case regardless of whether the Court looked to the original understanding of the
Fourth Amendment or to our modern doctrine.
As a matter of original understanding, the Fourth Amendment does not regulate the compelled production of documents at all. Here the Government received the relevant cell-site records pursuant to a court order compelling Carpenter’s cell service provider to turn them over. That process is thus immune from challenge under the original understanding of the
As a matter of modern doctrine, this case is equally straightforward. As Justice Kennedy explains, no search or seizure of Carpenter or his property occurred in this case. Ante
at 6–22; see also Part II, infra
. But even if the majority were right that the Government “searched” Carpenter, it would at most be a “figurative or constructive search” governed by the Oklahoma Press
standard, not an “actual search” controlled by the
Fourth Amendment’s warrant requirement.
And there is no doubt that the Government met the Oklahoma Press
standard here. Under Oklahoma Press
, a court order must “ ‘be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.’ ” Lone Steer, Inc.
, at 415. Here, the type of order obtained by the Government almost necessarily satisfies that standard. The Stored Communications Act allows a court to issue the relevant type of order “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that . . . the records . . . sough[t] are relevant and material to an ongoing criminal investigation.”
18 U. S. C. §2703(d). And the court “may quash or modify such order” if the provider objects that the “records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” Ibid.
No such objection was made in this case, and Carpenter does not suggest that the orders contravened the Oklahoma Press
standard in any other way.
That is what makes the majority’s opinion so puzzling. It decides that a “search” of Carpenter occurred within the meaning of the
Fourth Amendment, but then it leaps straight to imposing requirements that—until this point—have governed only actual
searches and seizures. See ante
, at 18–19. Lost in its race to the finish is any real recognition of the century’s worth of precedent it jeopardizes. For the majority, this case is apparently no different from one in which Government agents raided Carpenter’s home and removed records associated with his cell phone.
Against centuries of precedent and practice, all that the Court can muster is the observation that “this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” Ante
, at 19. Frankly, I cannot imagine a concession more damning to the Court’s argument than that. As the Court well knows, the reason that we have never seen such a case is because—until today—defendants categorically had no “reasonable expectation of privacy” and no property interest in records belonging to third parties. See Part II, infra
. By implying otherwise, the Court tries the nice trick of seeking shelter under the cover of precedents that it simultaneously perforates.
Not only that, but even if the
Fourth Amendment permitted someone to object to the subpoena of a third party’s records, the Court cannot explain why that individual should be entitled to greater
Fourth Amendment protection than the party actually being subpoenaed. When parties are subpoenaed to turn over their records, after all, they will at most receive the protection afforded by Oklahoma Press
even though they will own and have a reasonable expectation of privacy in the records at issue. Under the Court’s decision, however, the
Fourth Amendment will extend greater protections to someone else who is not being subpoenaed and does not own the records. That outcome makes no sense, and the Court does not even attempt to defend it.
We have set forth the relevant
Fourth Amendment standard for subpoenaing business records many times over. Out of those dozens of cases, the majority cannot find even one that so much as suggests an exception to the Oklahoma Press
standard for sufficiently personal information. Instead, we have always “described the constitutional requirements” for compulsory process as being “ ‘settled’ ” and as applying categorically to all “ ‘subpoenas [of] corporate books or records.’ ” Lone Steer, Inc.
, 464 U. S., at 415 (internal quotation marks omitted). That standard, we have held, is “the most
” protection the
Fourth Amendment gives “to the production of corporate records and papers.” Oklahoma Press
, 327 U. S.,
at 208 (emphasis added).[2
Although the majority announces its holding in the context of the Stored Communications Act, nothing stops its logic from sweeping much further. The Court has offered no meaningful limiting principle, and none is apparent. Cf. Tr. of Oral Arg. 31 (Carpenter’s counsel admitting that “a grand jury subpoena . . . would be held to the same standard as any other subpoena or subpoena-like request for [cell-site] records”).
Holding that subpoenas must meet the same standard as conventional searches will seriously damage, if not destroy, their utility. Even more so than at the founding, today the Government regularly uses subpoenas duces tecum
and other forms of compulsory process to carry out its essential functions. See, e.g.
, 410 U. S., at 11–12 (grand jury subpoenas); McPhaul
, 364 U. S., at 382–383 (legislative subpoenas); Oklahoma Press
, at 208–209 (administrative subpoenas). Grand juries, for example, have long “compel[led] the production of evidence” in order to determine “whether
there is probable cause to believe a crime has been committed.” Calandra
, 414 U. S., at 343 (emphasis added). Almost by definition, then, grand juries will be unable at first to demonstrate “the probable cause required for a warrant.” Ante
, at 19 (majority opinion); see also Oklahoma Press
, at 213. If they are required to do so, the effects are as predictable as they are alarming: Many investigations will sputter out at the start, and a host of criminals will be able to evade law enforcement’s reach.
“To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence.” Nixon
, 418 U. S., at 709. For over a hundred years, we have understood that holding subpoenas to the same standard as actual searches and seizures “would stop much if not all of investigation in the public interest at the threshold of inquiry.” Oklahoma Press
, at 213. Today a skeptical majority decides to put that understanding to the test.
Compounding its initial error, the Court also holds that a defendant has the right under the
Fourth Amendment to object to the search of a third party’s property. This holding flouts the clear text of the
Fourth Amendment, and it cannot be defended under either a property-based interpretation of that Amendment or our decisions applying the reasonable-expectations-of-privacy test adopted in Katz
389 U. S. 347. By allowing Carpenter to object to the search of a third party’s property, the Court threatens to revolutionize a second and independent line of
Fourth Amendment doctrine.
It bears repeating that the
Fourth Amendment guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects.” (Emphasis added.) The
Fourth Amendment does not confer rights with respect to the persons, houses, papers, and effects of others. Its language makes clear that “
Fourth Amendment rights are personal,” Rakas
439 U. S. 128, 140 (1978), and as a result, this Court has long insisted that they “may not be asserted vicariously,” id.
, at 133. It follows that a “person who is aggrieved . . . only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his
Fourth Amendment rights infringed.” Id.
, at 134.
In this case, as Justice Kennedy cogently explains, the cell-site records obtained by the Government belong to Carpenter’s cell service providers, not to Carpenter. See ante
at 12–13. Carpenter did not create the cell-site records. Nor did he have possession of them; at all relevant times, they were kept by the providers. Once Carpenter subscribed to his provider’s service, he had no right to prevent the company from creating or keeping the information in its records. Carpenter also had no right to demand that the providers destroy the records, no right to prevent the providers from destroying the records, and, indeed, no right to modify the records in any way whatsoever (or to prevent the providers from modifying the records). Carpenter, in short, has no meaningful control over the cell-site records, which are created, maintained, altered, used, and eventually destroyed by his cell service providers.
Carpenter responds by pointing to a provision of the Telecommunications Act that requires a provider to disclose cell-site records when a customer so requests. See
47 U. S. C. §222(c)(2). But a statutory disclosure requirement is hardly sufficient to give someone an ownership interest in the documents that must be copied and disclosed. Many statutes confer a right to obtain copies of documents without creating any property right.[3
Carpenter’s argument is particularly hard to swallow because nothing in the Telecommunications Act precludes cell service providers from charging customers a fee for accessing cell-site records. See ante
, at 12–13 (Kennedy, J., dissenting). It would be very strange if the owner of records were required to pay in order to inspect his own property.
Nor does the Telecommunications Act give Carpenter a property right in the cell-site records simply because they are subject to confidentiality restrictions. See
47 U. S. C. §222(c)(1) (without a customer’s permission, a cell service provider may generally “use, disclose, or permit access to individually identifiable [cell-site records]” only with respect to “its provision” of telecommunications services). Many federal statutes impose similar restrictions on private entities’ use or dissemination of information in their own records without conferring a property right on third parties.[4
It would be especially strange to hold that the Telecommunication Act’s confidentiality provision confers a property right when the Act creates an express exception for any disclosure of records that is “required by law.”
47 U. S. C. §222(c)(1). So not only does Carpenter lack “ ‘the most essential and beneficial’ ” of the “ ‘constituent elements’ ” of property, Dickman
465 U. S. 330, 336 (1984)—i.e.
, the right to use the property to the exclusion of others—but he cannot even exclude the party he would most like to keep out, namely, the Government.[5
For all these reasons, there is no plausible ground for maintaining that the information at issue here represents Carpenter’s “papers” or “effects.”[6
In the days when this Court followed an exclusively property-based approach to the
Fourth Amendment, the distinction between an individual’s
Fourth Amendment rights and those of a third party was clear cut. We first asked whether the object of the search—say, a house, papers, or effects—belonged to the defendant, and, if it did, whether the Government had committed a “trespass” in acquiring the evidence at issue. Jones
, 565 U. S., at 411, n. 8.
When the Court held in Katz
that “property rights are not the sole measure of
Fourth Amendment violations,” Soldal
v. Cook County
506 U. S. 56, 64 (1992), the sharp boundary between personal and third-party rights was tested. Under Katz
, a party may invoke the
Fourth Amendment whenever law enforcement officers violate the party’s “justifiable” or “reasonable” expectation of privacy. See 389 U. S., at 353; see also id.
, at 361 (Harlan, J., concurring) (applying the
Fourth Amendment where “a person [has] exhibited an actual (subjective) expectation of privacy” and where that “expectation [is] one that society is prepared to recognize as ‘reasonable’ ”). Thus freed from the limitations imposed by property law, parties began to argue that they had a reasonable expectation of privacy in items owned by others. After all, if a trusted third party took care not to disclose information about the person in question, that person might well have a reasonable expectation that the information would not be revealed.
Efforts to claim
Fourth Amendment protection against searches of the papers and effects of others came to a head in Miller
425 U. S. 435, where the defendant sought the suppression of two banks’ microfilm copies of his checks, deposit slips, and other records. The defendant did not claim that he owned these documents, but he nonetheless argued that “analysis of ownership, property rights and possessory interests in the determination of Fourth Amendment rights ha[d] been severely impeached” by Katz
and other recent cases. See Brief for Respondent in United States
, O. T. 1975, No. 74–1179, p. 6. Turning to Katz
, he then argued that he had a reasonable expectation of privacy in the banks’ records regarding his accounts. Brief for Respondent in No. 74–1179, at 6; see also Miller
, at 442–443.
Acceptance of this argument would have flown in the face of the
Fourth Amendment’s text, and the Court rejected that development. Because Miller gave up “dominion and control” of the relevant information to his bank, Rakas,
439 U. S., at 149, the Court ruled that he lost any protected
Fourth Amendment interest in that information. See Miller
, at 442–443. Later, in Smith
442 U. S. 735, 745 (1979), the Court reached a similar conclusion regarding a telephone company’s records of a customer’s calls. As Justice Kennedy concludes, Miller
are thus best understood as placing “necessary limits on the ability of individuals to assert
Fourth Amendment interests in property to which they lack a ‘requisite connection.’ ” Ante
, at 8.
The same is true here, where Carpenter indisputably lacks any meaningful property-based connection to the cell-site records owned by his provider. Because the records are not Carpenter’s in any sense, Carpenter may not seek to use the
Fourth Amendment to exclude them.
By holding otherwise, the Court effectively allows Carpenter to object to the “search” of a third party’s property, not recognizing the revolutionary nature of this change. The Court seems to think that Miller
invented a new “doctrine”—“the third-party doctrine”—and the Court refuses to “extend” this product of the 1970’s to a new age of digital communications. Ante
, at 11, 17. But the Court fundamentally misunderstands the role of Miller
. Those decisions did not forge a new doctrine; instead, they rejected an argument that would have disregarded the clear text of the
Fourth Amendment and a formidable body of precedent.
In the end, the Court never explains how its decision can be squared with the fact that the
Fourth Amendment protects only “[t]he right of the people to be secure in their
persons, houses, papers, and effects.” (Emphasis added.)
* * *
Although the majority professes a desire not to “ ‘embarrass the future,’ ” ante
, at 18, we can guess where today’s decision will lead.
One possibility is that the broad principles that the Court seems to embrace will be applied across the board. All subpoenas duces tecum
and all other orders compelling the production of documents will require a demonstration of probable cause, and individuals will be able to claim a protected
Fourth Amendment interest in any sensitive personal information about them that is collected and owned by third parties. Those would be revolutionary developments indeed.
The other possibility is that this Court will face the embarrassment of explaining in case after case that the principles on which today’s decision rests are subject to all sorts of qualifications and limitations that have not yet been discovered. If we take this latter course, we will inevitably end up “mak[ing] a crazy quilt of the
Fourth Amendment.” Smith
, at 745.
All of this is unnecessary. In the Stored Communications Act, Congress addressed the specific problem at issue in this case. The Act restricts the misuse of cell-site records by cell service providers, something that the
Fourth Amendment cannot do. The Act also goes beyond current
Fourth Amendment case law in restricting access by law enforcement. It permits law enforcement officers to acquire cell-site records only if they meet a heightened standard and obtain a court order. If the American people now think that the Act is inadequate or needs updating, they can turn to their elected representatives to adopt more protective provisions. Because the collection and storage of cell-site records affects nearly every American, it is unlikely that the question whether the current law requires strengthening will escape Congress’s notice.
Legislation is much preferable to the development of an entirely new body of
Fourth Amendment caselaw for many reasons, including the enormous complexity of the subject, the need to respond to rapidly changing technology, and the
Fourth Amendment’s limited scope. The
Fourth Amendment restricts the conduct of the Federal Government and the States; it does not apply to private actors. But today, some of the greatest threats to individual privacy may come from powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans. If today’s decision encourages the public to think that this Court can protect them from this looming threat to their privacy, the decision will mislead as well as disrupt. And if holding a provision of the Stored Communications Act to be unconstitutional dissuades Congress from further legislation in this field, the goal of protecting privacy will be greatly disserved.
The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce.