Nicholas Anthony
The Supreme Court fought for privacy in Chatrie v. United States, putting another dent in unchecked surveillance that has become too common. Yet, in a concurring opinion, Justice Neil Gorsuch pointed out an important issue: the decision seems to be drawing lines in the sand when it comes to the Fourth Amendment. While I’m happy to see the Fourth Amendment affirmed, Gorsuch is right.
Chatrie v. United States
If you have not been following the case, the issue centers around how the police investigated a bank robbery. In short, the police used a geofence warrant to get Google to hand over the location history of anyone who had been in the area during the robbery. After sifting through the data, the police eventually landed on Okello Chatrie.
Building on a similar case (Carpenter v. United States), the Court reminded everyone that the Fourth Amendment serves as a check on the government’s power:
The Fourth Amendment protects individuals’ reasonable expectations of privacy, and governmental “intrusion into that private sphere generally qualifies as a search.” The Amendment’s “basic purpose” is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” and it was designed “to place obstacles in the way of a too permeating police surveillance.”
Why does this reminder matter? Well, even though the government had a warrant, it argued that it didn’t need one because of the third-party doctrine. And in doing so, the government argued that any criticism of the warrant was meritless because one was never needed. That part is important because the defense argued that the warrant lacked particularity and probable cause. The warrant effectively said, “Give us everything on everyone, and we’ll figure it out later.”
The Supreme Court agreed with the defense, stating that “an individual has a legitimate expectation of privacy in his cellphone location data.” In other words, there’s no third-party doctrine defense for the government here.
In a world where privacy is becoming harder to defend, this Supreme Court decision is welcome news.
Location Privacy, But Not Financial Privacy
What makes this decision unfortunate is that the Supreme Court explicitly said location tracking “is ‘qualitatively different’ from ‘telephone numbers and bank records’” because location data is “incomparably ‘revealing’ and is ‘not truly “shared” as one normally understands the term’ given that cell phones are ‘indispensable to participation in modern society.’”
Yet, if we compare the Court’s description of location tracking against financial activity, it’s difficult to understand where the line is being drawn.
Financial data is arguably more revealing than location data. While location data says where you are, financial data also says what you were doing. Getting pinged at a church could mean any number of things. Perhaps you asked for directions, inquired about renting space for an event, or simply had questions as you explored switching religions. Yet, a donation to that church reveals who you are as a person. The difference between where you stood and what you did is immense.
The Supreme Court’s own list of concerns—the risk of revealing travel to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel”—works just as well as a description of what your credit card statement reveals. The Court said location data can provide “a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.” Yet so too can financial data. Donations reveal our religious and political associations. Wages reveal our professional associations. Gas and ticket purchases reveal our travel.
The Supreme Court’s voluntariness distinction also applies to financial records. It said that location data isn’t voluntarily handed off to providers because phones are indispensable to modern life. Yet, the same can be said of bank accounts. Nobody meaningfully chooses to hand over their private information to a bank any more than they choose to do so with Google. And that’s especially the case given that much of the information banks collect is required by law. There’s simply no way to have a bank account without giving the bank financial information.
Gorsuch’s Warning
Although he agreed with the decision, Gorsuch addressed these very issues. As he notes, the idea of a reasonable expectation of privacy is just some abstract idea “left to the judicial imagination” and often divorced from reality. Gorsuch asked, “Do we seriously mean to suggest that most Americans think they have no ‘reasonable expectation of privacy’ in records held for them by their banks[?].”
No answer was provided, but there is data on this very question. When the Cato Institute surveyed the American public, 79 percent of respondents said it was reasonable to expect privacy with their bank records. So clearly something is wrong.
Reflecting on the decision, Gorsuch asked, “Why is Location History data Mr. Chatrie voluntarily shared with Google not ‘truly shared’ when a person’s bank records are?”
Conclusion
The Supreme Court concluded that, “The Fourth Amendment must, as ever, protect against unjustified governmental intrusion on the privacy of the individual.” Yet nobody can credibly say phones are too indispensable to count as voluntary exposure while insisting bank accounts are optional. Either both should be protected, or neither should. Based on the arguments made in Chatrie v. United States, it’s time to recognize that the Bank Secrecy Act and warrantless surveillance of financial activity are an unjustified intrusion into people’s privacy.
Want to learn more? The Cato Institute filed an amicus brief in this case and was ultimately cited by Justice Gorsuch. Find the amicus brief here.