Amicus Curiae Brief — Carpenter v. United States, 138 S. Ct. 293 (2017) (No. 16-402)

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No. 16-402

In The

Supreme Court of the Anited States

TIMOTHY IVORY CARPENTER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

o-—

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

—

BRIEF OF PROFESSOR ORIN S. KERR AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

o—

ORIN S. KERR

Counsel of Record

2000 H Street, NW

Washington, DC 20052

(202) 994-4775

okerr@law.gwu.edu

COCKLE LEGAL BRIEFS (800) 225-6964

TABLE OF CONTENTS

Page

RT Ce EET Sick sceinancpsadactadsésncensascresas i

pp | FS bye 6 yy) - RR eee eneee ill

INTEREST OF THE AMICUS CURIAE............... 1

SUMMARY OF ARGUMENT ....................cccceeeeeees 1

Fa ie RE a RATS ha Seo PR eee 2

I. COLLECTION OF HISTORICAL CELL-

SITE DATA IS UNPROTECTED BY THE

FOURTH AMENDMENT BECAUSE IT IS

THE NETWORK EQUIVALENT OF OB-

SERVATION IN PUBLIC SPACE............... 3

Il. THE BALANCE OF PRIVACY AND SECU-

RITY IN HISTORICAL CELL-SITE RECORDS

IS BEST RESOLVED BY LEGISLATION

SUCH AS THE STORED COMMUNICA-

pS EERIE ERS OOo BAP me POT LENEEN 7

(a) Cell Phones Can Be Used to Facilitate

I hia penduebben 9

(b) Encryption Limits Government Com-

munications Surveillance Power .......... 1i

tively Engaged in Deciding the Proper

Statutory Protection For Cell-Site Rec-

sae calcd cc cndadieitaditaiabadbctaninbeiialarndivictisanes 12

lil. THE COURT SHOULD REJECT CARPEN-

TER’S MOSAIC THEORY OF THE FOURTH

PIII dicidntcbesbauinenicnoevinineniawniviiancdens 15

TABLE OF CONTENTS — Continued

Page

IV. WHETHER REASONABLE PEOPLE EX-

PECT PRIVACY IN CELL-SITE REC-

ORDS IS IRRELEVANT, AS THE THIRD

PARTY DOCTRINE IS ABOUT MANI-

FESTING SUBJECTIVE EXPECTATIONS

eT ciesnasashennnensnundnseniasennmieoninnesnatics 20

V. THE ENACTMENT OF PRIVACY LEGIS-

LATION DOES NOT GOVERN OR INFLU-

ENCE THE MEANING OF THE FOURTH

ETA LE TTR I oO TE 26

(a) Privacy Legislation Does Not Provide

Evidence of Reasonable Expectations of

PN aiisiinncicninivesiiininidaetincuenepsubaanibndsiasies 26

(b) 47 U.S.C. § 222 Does Not Make Cell-Site

Records the User’s Fourth Amendment

iii

TABLE OF AUTHORITIES

Page

CASES

Berger v. New York, 388 U.S. 41 (1967) ..................00 11

Dunaway v. New York, 442 U.S. 200 (1979) ............... 15

Ex Parte Jackson, 96 U.S. '727 (1878) ............ccccceeceeerees 7

Hester v. United States, 265 U.S. 57 (1924)................ 21

Hoffa v. United States, 385 U.S. 293 (1966)......21, 22, 23

Johnson v. United States, 333 U.S. 10 (1948)............. 10

Kaiz v. United States, 389 U.S. 247 (1967)......... passim

Lewis v. United States, 385 U.S. 206 (1966)............... 21

Lopez v. United States, 373 U.S. 427 (1963)............... 22

Minnesota v. Carter, 525 U.S. 83 (1998)..................4. 29

New York v. Belton, 453 U.S. 454 (1981)............... 15, 19

On Lee v. United States, 343 U.S. 747 (1952)............. 22

Osborn v United States, 385 U.S. 323 (1966)............. 22

Riley v. California, 134 S. Ct. 2473 (2014)....8, 13, 15, 20

Rios v. United States, 364 U.S. 253 (1960)................. 21

Smith v. Maryland, 442 U.S. 735 (1979) .............2..00200 7

State v. Gray, 234 N.C. App. 197 (2014) .................... 10

poe ge Oe 8S GE ee 9

United States v. Ackerman, 831 F.3d 1292 (10th

SE I 6 <5: atnssteieiccaipacetneniieneniaabeesnaenamiobensaeetaneiieisinn 29

United States v. Dionisio, 410 U.S. 1 (1973)................. 3

TABLE OF AUTHORITIES — Continued

Page

United States v. First National Bank, 295 F. 142

(S.D. Ala. 1924), aff’d, 267 U.S. 576 (19285)............... 7

United States v. Hill, 2013 WL 11317131 (N.D.

ER eels ata aa AL ee Sate eee SS ae 10

United States v. Horton, 863 F.3d 1041 (8th Cir.

RN eg Se SEAR See dette De ao SL SES rate itaree ORS FeO oe eee 9

United States v. Jacobsen, 466 U.S. 109 (1984).......... 25

United States v. Jeffers, 342 U.S. 48 (1951)................ 21

United States v. Jones, 565 U.S. 400 (2012)......... 15, 16

United States v. Olusola, 564 Fed.Appx. 466

Regard oD aR ste 8 2 1 LS, Sea 10

United States v. Supreme Court of N.M., 839

es eeinionuieaaie 28

CONSTITUTIONAL PROVISIONS

ERASE REE Arlee So OSE aa SOE 28

ee tes PRUNE: WY sastitbccicneciccniohienanccaiusiabiniontan passim

STATUTES

EINES ie RD LE WN re Rr 12, 24

SEA etree Ona A ee eee ee 24

po eee ani sree one ae Rees 12, 20

CE ED cantinchuinidccecssotidcasenecetqebibenoncoesinatieniadan 26, 29

TABLE OF AUTHORITIES — Continued

Page

Cal. Penal Code

NE CORES ARS Ee i eee EE PE RT 14

ER aL TE RE a a EE 14

FN De SS Ree ee 14

Pub. L. No. 103-414, Title II, § 207(a) (1994)............. 13

OTHER AUTHORITIES

Berin Szé6ka, Privacy Reform Finally Moves in

House: Goodlatte Promises Geolocation Pri-

vacy Bill Willi Move Soon, Tech Policy Corner,

SE TI aiiid tnicsirenetniaindagbienesionsebbamedbiedienieniatsainees it 14

EFF Statement on and Analysis of Digital Tel-

ephony Act, October 8, 1994 ...............scsscsssrsesesseeens 13

Eugene Volokh, Freedom of Speech and Infor-

mation Privacy: The Troubling Implications of

a Right to Stop People from Speaking About

You, 52 Stan. L. Rev. 1049 (2000) ..........0000...0. cece 30

Jake Swearingen, No, the CIA Hasn’t Compro-

mised Signal and WhatsApp, N.Y. Mag. Select

I ITT ohidi daidenciAusitidiniancecasslangraniiiestehtesiniaceses 11

Orin S. Kerr, A User’s Guide to the Stored Com-

munications Act, And A Legislator’s Guide to

Amending It, 72 Geo. Wash. L. Rev. 1208

Orin S. Kerr, The Mosaic Theory of the Fourth

Amendment, 111 Mich. L. Rev. 311 (2012)....... 15,17

TABLE OF AUTHORITIES — Continued

Page

Orin S. Kerr & Bruce Schneier, Encryption Work-

arounds, Geo. L.J. (forthcoming 2018), availa-

ble at https://papers.ssrn.com/sol3/papers.cfm?

CSTE, HR esscsetsinisasivataxsdstacnecanseaseeninan 12

Orin S. Kerr, An Equilibrium-Adjustment The-

ory of the Fourth Amendment, 125 Harv. L.

BO BF CE) seccccnsvncssbicscsienviccsttienbenmabaae 7, 8,11

Orin S. Kerr, Applying the Fourth Amendment to

the Internet: A General Approach, 62 Stan. L.

BRO, Fe CO vciicvicesernitnsessitemontiunibeigtiaemenn 4,5,6

Orin S. Kerr, Four Models of Fourth Amendment

Protection, 60 Stan. L. Rev. 503 (2007)................... 20

Orin S. Kerr, Katz Has Only One Step: The Irrel-

evance of Subjective Expectations, 82 U. Chi.

re OL. re ee 21, 23, 24

Orin S. Kerr, The Effect of Legislation on Fourth

Amendment Protection, 115 Mich. L. Rev. 1117

IF SP scvsinisscunastartondsatitnpnesdatipusaamabamamaneanaaae 27, 28, 29

Patricia M. Wald, Some Observations on the Use

of Legislative History in the 1981 Supreme

Court Term, 68 Iowa L. Rev. 195 (1983) ................. 28

Susan Freiwald, At the Privacy Vanguard: Cali-

fornia’s Electronic Communications Privacy

Act (CalECPA), Berkeley Tech. L.J. (forthcom-

ST FD cccesass+cacsacesysecascenesinenenianinasdaamune aman 14

INTEREST OF THE AMICUS CURIAE

Orin S. Kerr is the Fred C. Stevenson Research

Professor at the George Washington University Law

School. Beginning in January 2018, he will be a Profes-

sor of Law at the University of Southern California

Gould School of Law. The interest of amicus is the

sound development of Fourth Amendment law.'

SUMMARY OF ARGUMENT

The Fourth Amendment does not apply to the col-

lection of historical cell-site records. Collection of his-

torical cell-site records is the network equivalent of

unprotected observation in public space. Because the

effect of technological change is uncertain and evolv-

ing, the Court should allow Congress and state legisla-

tures to continue their active and dynamic debates

about the proper regulation of historical cell-site rec-

ords. The Court should also reject Carpenter’s mosaic

theory of the Fourth Amendment. The third-party doc-

trine should be retained, but the Court should restore

it to its pi .per place as the subjective expectation of

privacy test.

? All parties have consented in writing to the filing of this

brief. No entity or person aside from amicus curiae made any

monetary contribution supporting the preparation or submission

of this brief. No counsel for any party to this proceeding authored

this brief in whole or in part.

ARGUMENT

This is a challenging case. The facts involve new

and developing technology. The law features vague and

often-criticized tests. And the Court can’t help but feel

pulled by two competing and legitimate concerns. On

one hand, the law must keep up as technology changes

to maintain privacy protections. On the other hand, the

blunt instrument of the Fourth Amendment shouldn’t

be forced beyond its proper role.

This brief offers a way through the difficult issues

in five steps. It begins by anchoring the legal issues

raised in the familiar context of the physical world. It

then considers whether technological change justifies

a departure from the Court’s traditional rules. After

that, it explains why the Court should reject the theory

Carpenter advocates that would draw a distinction be-

tween longer-term and shorter-term surveillance. It

next explains how the parties have misunderstood a

significant part of the case, and how the case becomes

much simpler when properly understood. The brief

concludes by discussing the proper relationship be-

tween the interpretation of the Fourth Amendment

and statutory law.

I. COLLECTION OF HISTORICAL CELL-SITE

DATA IS UNPROTECTED BY THE FOURTH

AMENDMENT BECAUSE IT IS THE NET-

WORK EQUIVALENT OF OBSERVATION

IN PUBLIC SPACE.

Obtaining historical cell-site records from a cell

phone provider is like obtaining testimony from an

eyewitness to suspicious conduct. By contracting with

a cell pnone network provider to deliver their calls, cus-

tomers ensure that network providers may be availa-

ble to testify - whether in person or by sending records

~— about how the providers made that delivery for their

users. Just as a person voluntarily exposes himself to

observation by traveling in public to deliver a commu-

nication, so does a person voluntarily expose himself to

observation by hiring an agent to deliver his commu-

nications remotely. The Fourth Amendment is not im-

plicated by compelling testimony from an eyewitness

or by observation in public. See United States v. Dio-

nisio, 410 U.S. 1, 8-10 (1973); Katz v. United States, 389

U.S. 247, 361 (1967) (Harlan, J., concurring). The same

rule should apply in the analogous context of obtaining

historical cell-site records.

To appreciate this perspective, it is essential to

realize that the Fourth Amendment traditionally

achieves a balance between protected and unprotected

conduct. On one hand, the Fourth Amendment extends

constitutional protection to a person’s “houses, papers,

and effects” from unwarranted government interfer-

ence. U.S. Const. Amend. IV. On the other hand, the

Fourth Amendment offers no protection from govern-

ment surveillance in public. See Katz, 389 U.S. at 361.

A useful approximation of the Court’s many cases

is that the Fourth Amendment protects what occurs

inside but doesn’t protect what occurs outside. See

Orin S. Kerr, Applying the Fourth Amendment to the

Internet: A General Approach, 62 Stan. L. Rev. 1005,

1009-11 (2010) (hereinafter General Approach). This

dividing line strikes an essential balance in physical-

world investigations. It limits government power to

protect privacy in some spaces (inside), but it allows

the government to investigate without restriction in

other spaces (outside). See id. at 1011.

When applying the Fourth Amendment to commu-

nications networks, the Court’s first instinct should be

to preserve this essential traditional balance. To en-

sure that the balance of the Fourth Amendment is

maintained in our increasingly networked technologi-

cal world, the Court should translate the law’s treat-

ment of physical world space across the shift to a

networked environment. This is necessary to maintain

the traditional degree of privacy protection the Fourth

Amendment offers as technology changes.

Translation produces a simple rule: Although the

Fourth Amendment protects the contents of communi-

cations sent over a network, it does not protect non-

content addressing information used to deliver those

contents. See General Approach at 1017-22. Judge

Kethledge properly recognized in his opinion below

that ‘ie Court’s precedents have adopted the content/

non-content distinction in its caselaw on postal letters

and telephone calls. Pet. App. 9a-13a. Bui «ne content/

non-content line is essential for a deeper reason be-

yond precedent. It recreates the inside/outside distinc-

tion from the physical world, protecting the network

equivalent of inside surveillance (contents) and leav-

ing unprotected the network equivalent of outside sur-

veillance (non-content records). See General Approach

at 1017-22.

To see this, imagine a world without communica-

tions networks. If Alice wants to communicate with

Bob, Alice has to leave her home and travel to Bob’s

house. If the police suspect that Alice and Bob are

conspirators planning a crime, and they assign an of-

ficer to watch Alice’s whereabouts, the police can col-

lect only some information without triggering the

Fourth Amendment. The police cannot learn the con-

tents of what Alice and Bob said inside Bob’s home

without a warrant. On the other hand, the police can

observe Alice and see what she did in public — when

she left home, where she traveled, when she arrived at

Bob’s house, and where they both live — without trig-

gering the Fourth Amendment.

Next imagine that Alice calls Bob on her cell phone

instead of meeting him in person. Alice no longer has

to travel to meet Bob. The cell phone network delivers

the call from Alice to Bob, making a remote transfer

that eliminates the need for a public trip. But, criti-

cally, the same information exists. What was previ-

ously the contents of the conversation in Bob’s house is

now the contents of the phone call between Alice and

Bob. And what was previously Alice’s publicly observ-

able trip from her house to Bob’s house is now a record

that the phone provider generated and may keep about

when the call was made, to and from what numbers,

and what cell towers were used to deliver it.

To maintain the balance of the Fourth Amend-

ment, courts should treat the same information in the

same way in both the physical and network contexts.

The contents of phone calls should be protected, as

they are the telephone equivalent of protected inside

space. This means, in the Internet context, that the

contents of e-mails, text messages, and files that users

place in cloud storage should receive full Fourth

Amendment protection. See General Approach at 1029.

On the other hand, non-content records generated by

network providers — the business records they gener-

ate about how they delivered the communications —

should not be protected because they are the network

equivalent of the publicly observable trip that is out-

side such protection in the physical world. See id. at

1017-22.

It is true, as Carpenter argues, that cell phones are

“indispensable for full participation in family, social,

professional, civic, and political life.” Petr. Br. at 40. But

that provides no more reason to protect cell-site rec-

ords than does the normal human need to venture out-

side provide reason to protect observation in public.

The Fourth Amendment extends protection to some as-

pects of life but leaves other parts unprotected both in

the physical world and in the network environment.

This approach should lead the Court to reaffirm

the traditional rule, over a century old, that collection

of non-content addressing information for a network

communication does not implicate the customer’s

Fourth Amendment rights. See Ex Parte Jackson, 96

U.S. 727, 733 (1878) (postal letters); Smith v. Mary-

land, 442 U.S. 735, 743-44 (1979) (telephone calls). See

also United States v. First National Bank, 295 F. 142,

143 (S.D. Ala. 1924) (rejecting a challenge to govern-

ment access to a couple’s entire bank records, stating

that “[t]his is not a question of a search and seizure of

a party’s books and papers, but of whether a witness

who has information as to a party's dealings may be

required to testify to those facts”), aff’d, 267 U.S. 576

(1925) (per curiam).

Il. THE BALANCE OF PRIVACY AND SECURITY

IN HISTORICAL CELL-SITE RECORDS IS

BEST RESOLVED BY LEGISLATION SUCH

AS THE STORED COMMUNICATIONS ACT.

But wait, Carpenter says: Cell phone technology

has expanded government power to invade privacy.

In petitioner’s view, changing technology justifies add-

ing new protection for cell-site records to restore the

prior level of government power. Petr. Br. at 14-21. I

have called this argument “equilibrium-adjustment.” I

agree with Carpenter that, in a proper case, equilibrium-

adjustment is an appropriate way to update Fourth

Amendment rules in light of technological change. See

generally Orin S. Kerr, An Equilibrium-Adjustment

Theory of the Fourth Amendment, 125 Harv. L. Rev. 476,

525-42 (2011) (hereinafter Equilibrium-Adjusiment).

Technological change that dramatically expands gov-

ernment power under old legal rules can justify im-

posing greater privacy protection. See, eg., Riley v.

California, 134 S. Ct. 2473, 2494 (2014) (requiring a

warrant to search a cell phone incident to arrest be-

cause of “all they contain and all they may reveal”);

Equilibrium-Adjustment at 525-42.

This is not such a case, however. First, Carpenter

exaggerates the threat to privacy posed by historical

cell-site records. Such records ordinarily cover too

broad an area to be particularly revealing on their own.

Resp. Br. at 24-28. Notably, Carpenter does not say

what personal or sensitive fact was learned about him,

other than his location generally near a string of rob-

beries, when the government collected his records.”

Carpenter’s brief instead focuses on the privacy threat

raised by different location technologies such as GPS

? The Technology Experts claim that the records show Car-

penter “attended a particular church in Detroit nearly every Sun-

day.” Brief of Amici Curiae Technology Experts at 29 n.49. That is

wrong. According to an amicus brief filed in the Sixth Circuit, Car-

penter told amicus counsel that he attended a particular church.

See Brief of Amicus Curiae Am. Civil Liberties Union et al. at 11,

819 F.3d 880 (2016) (Nos. 14-1572 & 14-1805), available at https://

www.aclu.org/legal-document/united-states-v-carpenter-amicus-brief.

Analysis of the cell-site records then showed that on “a number of

Sundays,” Carpenter’s phone was used in sectors that included

that church. Jd. This provides no basis to conclude that the rec-

ords, considered alone, would have revealed church attendance.

The reason to think Carpenter attended a particular church is

that he said so.

tracking. See Petr. Br. at 19-29, 42-47. Those technolo-

gies typically require access to information stored in-

side a person’s physical device, however, and therefore

their use may be searches under traditional Fourth

Amendment principles. See, e.g., United States v. Hor-

ton, 863 F.3d 1041, 1047 (8th Cir. 2017).

More fundamentally, technology’s impact on gov-

ernment communications surveillance power is decid-

edly mixed. Although cell phone technology expands

government power in some ways, it shrinks govern-

ment power in other ways that Carpenter ignores. A

close look at two dynamics — how cell phones can facil-

itate crime and the role of encryption — suggests that

the overall impact of technology on government sur-

veillance power is uncertain and still evolving.

(a) Cell Phones Can Be Used to Facilitate

Crime.

Cell phone technology can limit government power

by giving wrongdoers a powerful new way to avoid de-

tection in the commission of crime. Consider the im-

pact of cell phones on a group robbery such as the one

in this case. Before the cell phone age, conspirators

planning to rob a store had to “case the joint” in the

open and meet in person to coordinate their plans.

Their suspicious behavior risked drawing the atten-

tion of officers nearby. See Terry v. Ohio, 392 U.S. 1

(1968) (permitting an officer to “stop and frisk” con-

spirators acting suspiciously in front of a store in the

course of planning a robbery).

Cell phones make such crimes easier to commit

and harder to detect. These days, robbery conspirators

can coordinate their crimes silently and instantly over

any distance by cell phone text message. One conspira-

tor can watch the store and text his observations to the

others. See, e.g., State v. Gray, 234 N.C. App. 197, 206

(2014). A second conspirator can serve as a lookout and

text the group if danger appears. See United States uv.

Olusola, 564 Fed.Appx. 466, 468 (11th Cir. 2014). After

the robbery, the leader can text the rest with instruc-

tions about where to meet to divvy up the loot. See, e.g.,

United States v. Hill, 2013 WL 11317131, *2 (N.D.

Okla. 2013). The cell phone replaces awkward and sus-

picious in-person meetings with concealed, silent, and

instant coordination. An officer walking the beat will

be none the wiser. The conspirators will look like eve-

ryone else: Just people checking their phones.

The ways that cell phones can facilitate crime and

avoid detection counsels against creating new Fourth

Amendment protections for cell phone records. Obvi-

ously, most people don’t use their phones to commit

crimes. But most people don’t have their records col-

lected by court order under the Stored Communica-

tions Act, either. The key point is that the effect of cell

phone technology on the “often competitive enterprise

of ferreting out crime,” Johnson v. United States, 333

U.S. 10, 14 (1948), operates as a two-way street. The

ability of cell phone companies to deliver communica-

tions quickly and silently over any distance cuts both

ways. It can lead to records about the delivery that

helps the police, and it can aid in the commission of

crime that helps wrongdoers. Both should be consid-

ered. See Equilibrium-Adjustment at 512-17.

(b) Encryption Limits Government Commu-

nications Surveillance Power.

The rise of encryption also complicates the dynamic

Carpenter describes. In the past, the government ordi-

narily had the technical capacity to intercept the con-

tents of phone calls and communications. See Berger v.

New York, 388 U.S. 41, 46 (1967). In the last decade,

however, software providers have provided powerful

and free technologies that enable anyone to shield

the contents of their communications from lawful gov-

ernment access by encrypting the contents of their

network communications during transmission. For ex-

ample, today over one billion people worldwide use

“WhatsApp,” a program first introduced in 2009 that

encrypts messages end-to-end. See Join WhatsApp.’ As

far as the public knows, not even the Central Intelli-

gence Agency can break WhatsApp’s encryption. See

Jake Swearingen, No, the CIA Hasn’t Compromised Sig-

nal and WhatsApp, N.Y. Mag. Select All, Mar. 7, 2017.4

Doing so is presumably beyond the capacity of federal,

state, or local law enforcement.

Encryption shows how the impact of technology on

government communications surveillance power can

work both ways. Encryption brings many wonderful

* https://www.whatsapp.com/join/

* http://nymag.com/selectall/2017/03/no-the-cia-hasnt-cracked-

encrypted-chat-app-signal.html

benefits, but it can leave investigators unable to read

a target’s encrypted communications even with a

search warrant. It is too early to tell how far encryption

will interfere with government investigative powers.°

But because users generally can’t encrypt non-content

records such as historical cell-site records, the collec-

tion of such records may take on a more important role

in future surveillance practices. The Court should be

reluctant to introduce new constitutional protections

for non-content records when the existing constitu-

tional framework for access to contents may be im-

peded by new encryption technology.

tively Engaged in Deciding the Proper

Statutory Protection For Cell-Site Records.

Because the effect of technology on communica-

tions surveillance is a mixed bag, the Court should

continue to allow legislatures to debate and decide

how much protection cell-site records should receive.

The federal Stored Communications Act sets a floor for

all investigators. See 18 U.S.C. § 2702, § 2703(d). See

generally Orin S. Kerr, A User’s Guide to the Stored

Communications Act, And A Legislator’s Guide to

5 Law enforcement can try several ways to work around en-

cryption to access contents. See generally Orin S. Kerr & Bruce

Schneier, Encryption Workarounds, Geo. L.J. (forthcoming 2018),

available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=

2938033. These methods may or may not work, however, and some

require considerable resources beyond the reach of many criminal

investigations. See id. at 33-35.

Amending It, 72 Geo. Wash. L. Rev. 1208, 1209-25

(2004) (summarizing the privacy protections of the

Stored Communications Act). The states are free to im-

pose greater restrictions on state and local officers. The

Court should not short-circuit this active and dynamic

legislative process by imposing a one-size-fits-all con-

stitutional rule. See Riley, 134 S. Ct. at 2497-98 (Alito,

J., concurring in the judgment).

Legislators certainly recognize the need for some

kind of statutory privacy protection limiting govern-

ment access to cell-site records. Everybody gets that.

The real debate is over what standards and remedies

should govern. In 1994, Congress amended the Stored

Communications Act to impose a new “specific and ar-

ticulable facts” standard for access to non-content his-

torical network account records that include cell-site

records. See Pub. L. No. 103-414, Title II, § 207(a)

(1994). At the time, amicus curiae Electronic Frontier

Foundation celebrated the new privacy law as a “criti-

cal” measure that achieved “a significantly greater

level of protection” than traditional network privacy

laws. See EFF Statement on and Analysis of Digital Te-

lephony Act, October 8, 1994.*®

Since 1994, Congress has frequently debated

whether to further raise the statutory standard for ac-

cess to cell-site records. By my count, the House Judi-

ciary Committee and its subcommittees have held

® https//w2.efforg/Privacy/Surveillance/CALEA/digtel94 passage_

statement.eff

hearings partly or largely about this question five dif-

ferent times — in 2000, 2010 (twice), 2012, and 2013.’

Committee Chair Robert Goodlatte promised last year

that more legislative attention was coming. See Berin

Sz6ka, Privacy Reform Finally Moves in House: Good-

latte Promises Geolocation Privacy Bill Will Move

Soon,® Tech Policy Corner, Apr. 14, 2016.

State legislatures have also been active. California

recently enacted the most far-reaching statutory pri-

vacy protection for network and electronic communica-

tions ever seen in the United States. See generally

Susan Freiwald, At the Privacy Vanguard: California’s

Electronic Communications Privacy Act (CalECPA),

Berkeley Tech. L.J. (forthcoming 2018).’ Starting in

2016, the law not only requires a warrant for Califor-

nia law enforcement access to non-content records,

including historical cell-site data, but it also imposes

special particularity and nondisclosure rules for those

warrants. See Cal. Penal Code § 1546(d), § 1546.1(b)(1),

§ 1546.1(d).

7 The published reports of these hearings are available

here:

bit.ly/HouseReport2000

bit. ly/HouseReport20101

bit.ly/HouseReport20102

bit.ly/HouseReport2012

bit.ly/HouseReport2013

® https//techpolicycorner.org/email-privacy-reform-finally-moves-

in-house-df8f09962de6

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il. THE COURT SHOULD REJECT CARPEN-

TER’S MOSAIC THEORY OF THE FOURTH

AMENDMENT.

Carpenter chiefly argues that the Court should

follow the concurring opinions in United States v.

Jones, 565 U.S. 400 (2012), which suggested that cer-

tain kinds of long term surveillance can become a

Fourth Amendment search. Petr. Br. at 14-32. The

Jones concurring opinions reflect the so-called “mosaic

theory,” by which government evidence-collection is

not a search in isolation but becomes a search when

aggregated and analyzed over some period of time to

create a mosaic picture of a person’s activities. See gen-

erally Orin S. Kerr, The Mosaic Theory of the Fourth

Amendment, 111 Mich. L. Rev. 311 (2012) (hereinafter

Mosaic Theory).

A majority opinion of the Court has never adopted

the mosaic theory. And it should not start now. The

mosaic approach is well-intentioned but deeply mis-

guided. It is a dramatic departure from traditional ap-

proaches, and it would drag state and federal courts

into impossible line-drawing exercises that would

cause endless confusion. Adopting the mosaic theory

“would keep defendants and judges guessing for years

to come,” Riley, 134 S. Ct. at 2493, instead of providing

the bright-line rules that are “essential to guide police

officers.” New York v. Belton, 453 U.S. 454, 458 (1981)

(quoting Dunaway v. New York, 442 U.S. 200, 213-14

(1979)).

Before discussing the problems with the mosaic

theory, it’s important to realize that the Jones concur-

rences themselves suggest it may not apply to collec-

tion of historical cell-site records. Both concurrences in

Jones were premised at least in part on the absence of

legislation limiting the executive branch. See Jones,

565 U.S. at 416 (Sotomayor, J., concurring) (suggesting

that the appropriateness of permitting executive dis-

cretion should be considered “in the absence of any

oversight from a coordinate branch”); id. at 430 (Alito,

J., concurring in the judgment) (justifying the ap-

proach because legislatures “have not enacted statutes

regulating the use of GPS tracking technology for law

enforcement purposes”). As discussed above, the collec-

tion of historical cell-site records is the subject of ex-

tensive statutory regulation at both the federal and

state levels. The Jones concurrences are distinguisha-

ble on that basis alone.

If the Court must address the general viability of

the mosaic theory, the approach should be rejected. Un-

der the “longer term” aggregation approach advocated

by Carpenter, the basic operation of Fourth Amend-

ment doctrine would be thrown into doubt. The Court

would need to answer an extensive list of novel and

difficult questions to allow lower courts to implement

the short-term/long-term distinction. In effect, the

Court would need to create a parallel set of new Fourth

Amendment rules. This would be a remarkable chal-

lenge. The Court should not adopt the mosaic approach

without recognizing the complexities ahead.

I elaborate on the difficult questions in my Mosaic

Theory article, see id. at 328-43, but here is an overview

of the main questions. First, which surveillance meth-

ods are covered by a mosaic approach? If the mosaic

theory applies to collection of historical cell-site rec-

ords, does it also apply to collecting credit card records?

Bank records? Use of automatic license plate readers?

Use of public cameras installed by the government?

Collection of camera footage from cameras installed by

private actors? Monitoring of phone numbers dialed or

Internet Protocol addresses used? Visual surveillance?

Does the mosaic approach apply only to collecting loca-

tion information, or does it apply to collecting any in-

formation — and if it is limited to location records, what

about records (such as credit card statements) that

permit plausible guesses about a person’s location?

Each technique, and many more, would need to be clas-

sified as included or excluded.

For each technique covered by the mosaic theory,

a host of questions would arise. The most obvious —

how long counts as “longer term” — is just the tip of

the iceberg. Other questions include: Is the time period

the same for different surveillance methods covered by

the mosaic approach? What if several people used the

device and no mosaic for any one individual can be con-

structed? And imagine the government uses two sur-

veillance methods at the same time, such as GPS and

cell-site tracking together, to monitor a suspect. Does

that cut the window of allowed monitoring in half?

It gets even more complicated. Imagine the Court

tries to draw a bright-line rule. Let’s imagine, for the

sake of argument, that 21 days of surveillance always

triggers a mosaic search. Does switching surveillance

methods restart the clock? For example, can the police

do 20 days of GPS tracking, then 20 days of cell-site

monitoring, and then 20 days of Internet Protocol ad-

dress monitoring? Or does each day of any surveillance

method count towards the 21-day total?

And is there a statute of limitations that resets the

clock? Imagine investigators collect 20 days of cell-site

records to avoid a search. Can they wait six months —

or a year or two — and then get another 20 days’ worth?

And what if they get records only covering four hours

per day, say, from 1pm to 5pm every day. Can they still

only get records for 21 individual days before trigger-

ing a search, or can they now fet records for up to 126

days because they are only collecting records for part

of each day? And consider how the test works if there

are multiple investigations of the same suspect, such

as a federal investigation and a local investigation op-

erating concurrently. Does the 21-day rule apply to all

investigators collectively, or does separation among in-

vestigations mean different 21-day clocks?

Next consider how to determine the reasonable-

ness of a mosaic search and what remedies apply to

violations. Is a warrant required? If so, how can a mo-

saic warrant satisfy the particularity requirement

when it is inherently about aggregating surveillance

from many places over time? If no warrant is required,

how much cause is required? Do all mosaic searches

require the same amount of cause, or do different mo-

saic techniques for time periods trigger different lev-

els? What is the test for standing to challenge a mosaic

search? Does the exclusionary rule apply, and if so does

it apply to the entire surveillance that occurred or only

that which crossed the line into being a search?

Carpenter offers no answers to these questions.

“When the time comes to provide precise guidance to

law enforcement agents and lower courts,” Carpenter

writes, “this Court will have ample authority to do so.”

Petr. Br. at 30. Carpenter won’t even touch the simplest

question of how long is “longer term.” In some future

case, Carpenter says, the Court can “set bright-line du-

rational limits.” Jd. at 31. Just adopt the theory now, in

other words. You can confront the maddening implica-

tions of it later.

The Court should decline this invitation. Fourth

Amendment law requires certainty, see Belton, 453 U.S.

at 458, in part because the blunt instrument of the ex-

clusionary rule may apply. Because the government

can lose its case if officers break the law, courts must

provide clear rules that enable investigators to steer

clear of violations. It is hard to see how courts can sup-

ply those clear answers under a mosaic theory. The

many questions it raises “would keep defendants and

judges” — and for that matter, law professors — “guess-

ing for years to come.” Riley, 134 S. Ct. at 2493.°°

IV. WHETHER REASONABLE PEOPLE EXPECT

PRIVACY IN CELL-SITE RECORDS IS IRREL -

EVANT, AS THE THIRD PARTY DOCTRINE

IS ABOUT MANIFESTING SUBJECTIVE EX-

PECTATIONS OF PRIVACY.

The parties frame this case as being largely about

the reasonable expectation of privacy test. That test

has been the subject of extraordinary confusion. Both

courts and commentators have been unsure of what

makes an expectation of privacy “reasonable.” The un-

certainty is understandable. The Court has mixed and

matched among four different frameworks that offer

different answers to what makes an expectation of

privacy reasonable. See Orin S. Kerr, Four Models of

Fourth Amendment Protection, 60 Stan. L. Rev. 503

(2007). I have called these four frameworks the proba-

bilistic, private facts, positive law, and policy models.

See id. at 507-24. A close read of Carpenter’s brief re-

veals rotating use of each of the four models. See Petr.

Br. at 14-15 (probabilistic model); id. at 15-21 (policy

Amendment governs government collection of historical cell-site

records, the same Fourth Amendment restriction should apply to

both short-term and long-term records collection. In that event,

the Court should also conclude that the intermediate standard of

18 U.S.C. § 2703(d) satisfies the Fourth Amendment. See Resp. Br.

at 50-55.

model); id. at 21-23 (positive law model); id. at 24-29

(private facts model).

Fortunately, the Court can and should sidestep the

morass of the reasonable expectation of privacy test in

this case. Properly understood, this case is not about

the reasonable expectation of privacy test at all. In-

stead, like other cases concerning the third-party doc-

trine, it is actually about the subjective expectation of

privacy test. See Orin S. Kerr, Katz Has Only One Step:

The Irrelevance of Subjective Expectations, 82 U. Chi.

L. Rev. 113, 115, 127-29 (2015) (hereinafter Subjective

Expectations). From this perspective, Carpenter’s posi-

tion attempts to eliminate the original intended role of

the subjective prong of the two-part Katz test that the

Court has adopted. See id. at 115. The Court should

reject Carpenter’s invitation to set the Fourth Amend-

ment on that new and uncharted path.

Appreciating this point requires a close read of

Justice Harlan’s famous concurring opinion in Katz. At

the time of Katz, there were two distinct sets of Fourth

Amendment precedents on what is a search. One set

identified the spaces that could be the subject of

Fourth Amendment protection. See, e.g., Rios v. United

States, 364 U.S. 253 (1960) (taxi cab); United States v.

Jeffers, 342 U.S. 48, 51-52 (1951) (hotel room). But see

Hester v. United States, 265 U.S. 57, 59 (1924) (open

fields). The second set considered when a person

waived protection in an otherwise-protected space by

voluntarily revealing information to others such as un-

dercover agents. See, e.g., Hoffa v. United States, 385

U.S. 293, 302 (1966); Lewis v. United States, 385 U.S.

206, 210-11 (1966); Osborn v. United States, 385 U.S.

323, 325-27 (1966); Lopez v. United States, 373 U.S.

427, 438-39 (1963); On Lee v. United States, 343 U.S.

747, 749 (1952).

Justice Harlan’s two-part Katz test simply sum-

marized that case law. The “twofold requirement” was

Justice Harlan’s “understanding of the rule that har

emerged from prior decisions” that explained how the

Fourth Amendment protected a “place.” Katz, 389 U.S.

at 360 (Harlan, J., concurring). One requirement was

that the government intrusion of a protected area be

“a place” about which “society is prepared to recognize”

an “expectation of privacy” as “reasonable.” Jd. This

answered what spaces could be constitutionally pro-

tected. Conversation in homes and enclosed phone

booths could be protected but “conversations in the

open would not be protected.” Jd. at 360-61.

Another requirement was that a person must

“have exhibited an actual (subjective) expectation of

privacy.” Jd. at 361. Under this requirement, “objects,

activities, or statements that he exposes to the plain

view of outsiders” from inside a constitutionally pro-

tected space “are not protected because no intention to

keep them to himself has been exhibited.” Id. This ac-

curately summarized the many cases holding that a

person had no Fourth Amendment protection against

the use of undercover agents even inside the home. See,

e.g., Hoffa, 385 U.S. at 302-03. The key was that an ex-

pectation of privacy had to be “exhibited,” that is,

demonstrated by an act. A person had to shield his

speech from others to have protection; one who shared

information with others necessarily accepted the risk

they would reveal it. See id.

All of this matters because Carpenter is about the

second inquiry rather than the first. No one is charac-

terizing the “place” where the cell-site records were ob-

tained or stored. It is irrelevant whether “society is

prepared to recognize” an expectation of privacy in that

place as reasonable. This case instead is about cell-

phone users’ failure to exhibit a subjective expectation

of privacy against a phone company’s network connect-

ing with the phone to route the user’s communications.

Using a phone that seeks a connection with local net-

works does not exhibit an expectation of privacy in the

fact of that connection. Properly understood, the rea-

sonable expectation of privacy test has no bearing on

the issues raised in this case.

As I detailed in a recent article, some precedents

of this Court have confused this point. See Subjective

Expectations at 124-26. The “subjective” prong of the

Katz test was wrongly assumed to be truly subjective.

This confusion led the Court to move the disclosure

principle over to the objective part of the test under the

label of the so-called third-party doctrine. Id. The re-

sult is a doctrinal oddity. The two-part Katz test has

been reduced to one part, and the third-party doctrine

that was originally the subjective part of Katz is now a

special application of the objective part. Jd. at 127-33.

No wonder so many scholars criticize the third-party

doctrine: It comes off as a strange application of the

reasonable expectation of privacy test. But that’s be-

cause it’s not an application of that test at all. The

Court should retain the third-party doctrine but char-

acterize it properly as the subjective test, recognizing

that it is distinct from the reasonable expectation of

privacy test.”

This background explains the inability of Carpen-

ter and his amici to identify a clear rule to govern this

case. Carpenter seeks to do something truly new. He

wants to introduce a right to stop others (here, cell

phone companies) from disclosing to the government

information he has shared with them. Carpenter can’t

identify a clear rule because no Fourth Amendment

principle explains who can be stopped to talk about

what they know and what facts they can’t disclose. Any

doctrinal line would be made out of thin air.

That poses no problem for legislatures. Legis-

latures can enact a nondisclosure rule that prohibits

specific entities from disclosing specific kinds of infor-

mation except pursuant to specific kinds of legal pro-

cess. Congress has done exactly that in the Stored

Communications Act. See 18 U.S.C. § 2702, § 2703. But

it’s hard to introduce a Fourth Amendment nondisclo-

sure rule to determine what is a search. No constitu-

tional text, history, or caselaw offers guidance on what

In my Subjective Expectations article, | recommended

eliminating the subjective prong while retaining the third-party

doctrine. See id. at 133-34. I now think the more sensible approach

is to restore the original understanding of Katz with the third-

party doctrine properly labeled the subjective prong and distin-

guished from the objective prong.

such a private-party nondisclosure rule would look

like.

The Empirical Scholars look for answers in public

opinion polls and surveys. See Amicus Brief of Empiri-

cal Fourth Amendment Scholars at 2-10. They envision

the Katz test as protection against the unexpected:

Surprising disclosures to the government should re-

quire a warrant because they violate the expectations

of ordinary people. See id. at 10-16. That has never

been the law. “The concept of an interest in privacy

that society is prepared to recognize as reasonable is,

by its very nature, critically different from the mere

expectation, however well justified, that certain facts

will not come to the attention of the authorities.”

United States v. Jacobsen, 466 U.S. 109, 122 (1984) (em-

phasis added).

Nor should it become the law. The Constitution

already includes an institution, Congress, that is de-

signed to reflect public opinion about disclosures of

information. It’s also hard to see why the Fourth

Amendment should protect against unexpected gov-

ernment action. And what disclosures are surprising to

people is likely based on what they read on the Inter-

net, which is not exactly a reliable basis for constitu-

tional decisionmaking. Finally, it would be difficult for

courts to implement a survey-based approach to what

disclosures of information should be a search. Public

opinion changes, and judges are not empiricists who

are trained to compare and critique new scholarly re-

search. Empirical studies can be useful in some con-

texts within Fourth Amendment law. But they cannot

Court should retain the third-party doctrine but char-

acterize it properly as the subjective test, recognizing

that it is distinct from the reasonable expectation of

privacy test."

This background explains the inability of Carpen-

ter and his amici to identify a clear rule to govern this

case. Carpenter seeks to do something truly new. He

wants to introduce a right to stop others (here, cell

phone companies) from disclosing to the government

information he has shared with them. Carpenter can’t

identify a clear rule because no Fourth Amendment

principle explains who can be stopped to talk about

what they know and what facts they can’t disclose. Any

doctrinal line would be made out of thin air.

That poses no problem for legislatures. Legis-

latures can enact a nondisclosure rule that prohibits

specific entities from disclosing specific kinds of infor-

mation except pursuant to specific kinds of legal pro-

cess. Congress has done exactly that in the Stored

Communications Act. See 18 U.S.C. § 2702, § 2703. But

it’s hard to introduce a Fourth Amendment nondisclo-

sure rule to determine what is a search. No constitu-

tional text, history, or caselaw offers guidance on what

11 In my Subjective Expectations article, I recommended

eliminating the subjective prong while retaining the third-party

doctrine. See id. at 133-34. I now think the more sensible approach

is to restore the original understanding of Katz with the third-

party doctrine properly labeled the subjective prong and distin-

guished from the objective prong.

such a private-party nondisclosure rule would look

like.

The Empirical Scholars look for answers in public

opinion polls and surveys. See Amicus Brief of Empiri-

cal Fourth Amendment Scholars at 2-10. They envision

the Katz test as protection against the unexpected:

Surprising disclosures to the government should re-

quire a warrant because they violate the expectations

of ordinary people. See id. at 10-16. That has never

been the law. “The concept of an interest in privacy

that society is prepared to recognize as reasonable is,

by its very nature, critically different from the mere

expectation, however well justified, that certain facts

will not come to the attention of the authorities.”

United States v. Jacobsen, 466 U.S. 109, 122 (1984) (em-

phasis added).

Nor should it become the law. The Constitution

already includes an institution, Congress, that is de-

signed to reflect public opinion about disclosures of

information. It’s also hard to see why the Fourth

Amendment should protect against unexpected gov-

ernment action. And what disclosures are surprising to

people is likely based on what they read on the Inter-

net, which is not exactly a reliable basis for constitu-

tional decisionmaking. Finally, it would be difficult for

courts to implement a survey-based approach to what

disclosures of information should be a search. Public

opinion changes, and judges are not empiricists who

are trained to compare and critique new scholarly re-

search. Empirical studies can be useful in some con-

texts within Fourth Amendment law. But they cannot

provide the nondisclosure line-drawing that Carpenter

needs.

Vv. THE ENACTMENT OF PRIVACY LEGISLA-

TION DOES NOT GOVERN OR INFLUENCE

THE MEANING OF THE FOURTH AMEND-

MENT.

Carpenter also argues that the enactment of pri-

vacy legislation should lead the Court to hold that he

has Fourth Amendment rights in his cell-site records.

He makes this argument in two ways. First, he argues

that the existence of statutory privacy protections for

cell-site records reflect a societal expectation of privacy

in those records. Petr. Br. at 21-23. Second, he argues

that designations found in 47 U.S.C. § 222 create a pro-

prietary interest that makes cell-site records the user’s

constitutional “papers” or “effects.” Petr. Br. at 32-35.

Both arguments should be rejected.

(a) Privacy Legislation Does Not Provide

Evidence of Reasonable Expectations of

Privacy.

The enactment of privacy legislation cannot bol-

ster Carpenter’s case for constitutional protection for

two reasons. The first reason is implicit in the discus-

sion above: Because this case is properly understood as

being about a failure to manifest a subjective expecta-

tion of privacy rather than reasonable expectations of

privacy, whatever reasonable expectations may exist

are not relevant. See Part IV, supra. The second reason

is broader and more fundamental. Even if you assume

that this is a case about reasonable expectations of pri-

vacy, privacy legislation cannot provide a helpful guide

to assessing those expectations.

Here are the basic problems, drawing from a re-

cent article that explores the issue in greater depth.

See Orin S. Kerr, The Effect of Legislation on Fourth

Amendment Protection, 115 Mich. L. Rev. 1117 (2017)

(hereinafter Effect of Legislation). First, privacy legis-

lation does not signal Fourth Amendment values be-

cause it answers a very different set of questions. Any

legal regime regulating law enforcement access must

address three questions: What information is covered,

how much protection is given to what is protected, and

what remedies apply to violations. Because legislative

privacy laws typically answer all three questions dif-

ferently from Fourth Amendment law, one can’t isolate

any specific answer and imagine it sheds light on the

constitutional framework when the two other answers

are different. Jd. at 1140-44.

The Stored Communications Act offers an exam-

ple. Although the federal statute protects cell-site rec-

ords from disclosure, that protection offers no guidance

on whether the Fourth Amendment should do so. The

statute imposes no limit on the scope of records ob-

tained; it uses a “specific and articulable facts” disclo-

sure standard; and it rejects a statutory exclusionary

rule. Pet. App. 17a-18a. It’s not clear how the coverage

of the statute can inform a judgment about whether

the Fourth Amendment should apply given that the

Fourth Amendment typically has a different scope, a

different standard, and different remedies. See Effect

of Legislation at 1140-44.

The same is true with state laws that adopt a war-

rant requirement for access to historical cell-site rec-

ords. Even assuming the exclusionary rule applies to

violations of those statutes, the states only have the

constitutional authority to regulate state and local

governments. Under the Supremacy Clause, state laws

cannot regulate federal investigations. See, e.g., United

States v. Supreme Court of N.M., 839 F.3d 888 (10th

Cir. 2016). This makes it difficult to determine the les-

son of a state law warrant requirement. Does it signal

a wish to impose strong protection against disclosure

of cell-site records, or does it signal only a wish to reg-

ulate collection by state and local officers? See Effect of

Legislation at 1144-47.

Further, if the adoption of warrant-based protec-

tions by a minority of states signals something about

the Fourth Amendment, what should we make of the

fact that a majority of states have not enacted such

protections? Does that mean most states see no privacy

implications in the disclosure of cell-site data? That

most states are fine with the federal standard? That

most states just haven’t yet reached the question?

Looking at state laws for insights about privacy ex-

pectations requires drawing lessons from very mixed

signals. Like mining legislative history for helpful com-

ments, it is akin to “looking over a crowd and picking

out your friends.” Patricia M. Wald, Some Observations

on the Use of Legislative History in the 1981 Supreme

Court Term, 68 Iowa L. Rev. 195, 214 (1983) (quoting

Judge Harold Leventhal). The better approach is to in-

terpret the Fourth Amendment independently of stat-

utory privacy protections. See Effect of Legislation at

1157-64.

(b) 47 U.S.C. § 222 Does Not Make Cell-Site

Records the User’s Fourth Amendment

“Papers”.

Carpenter’s argument that 47 U.S.C. § 222 makes

cell-site records the customers Fourth Amendment

“papers” should also be rejected. To be sure, the Fourth

Amendment concept of “papers” includes papers in

electronic form. See Katz, 389 U.S. at 362 (Harlan, J.,

concurring); United States v. Ackerman, 831 F.3d 1292,

1304 (10th Cir. 2016) (Gorsuch, J.). At the same time,

the Fourth Amendment only provides a right to per-

sons in “their” papers, not in the papers of someone

else. U.S. Const. Amend. IV; Minnesota v. Carter, 525

US. 83, 92-97 (1998) (Scalia, J., concurring).

The cell-site records collected in this case were

the “papers” of the phone companies, not Carpenter.

Cell-site records are information that a company cre-

ates, and a company then decides to store on its com-

puters, about how the company’s network was used.

Users have no legal right to access their cell-site rec-

ords. The records belong to the companies not their us-

ers. Cf id. (Scalia, J., concurring).

Carpenter’s argument to the contrary is based on

47 U.S.C. § 222, which imposes certain limitations on

the disclosure of customer-related records. The prob-

lem is that rules regulating disclosure do not create a

property right in the regulated facts that belong to the

subject of the disclosure. Confidentiality is not prop-

erty. The fact that information concerns someone does

not make that information his stuff. If the law limits

when Alice can tell the world about what she saw Bob

do, Alice’s recollection does not become Bob’s “papers”

or “effects.” Alice’s recollections belong to Alice, not

Bob. Cf. Eugene Volokh, Freedom of Speech and Infor-

mation Privacy: The Troubling Implications of a Right

to Stop People from Speaking About You, 52 Stan. L.

Rev. 1049, 1063-81 (2000).

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted,

ORIN S. KERR

Counsel of Record

2000 H Street, NW

Washington, DC 20052

(202) 994-4775

okerr@law.gwu.edu

October 2, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.