Give The “Trespass” Examination (And Estimate Gorsuch) A Chance

Kiel Brennan-Marquez in addition to Andrew Tutt

In 2012, when the Supreme Court held in United States v. Jones that police describe may non engage inward prolonged GPS surveillance of a machine on public streets without a warrant, many scoffed. Not at the outcome, which was widely applauded, but at the reasoning: the bulk opinion, written yesteryear Justice Antonin Scalia, hinged on the fact that when the police describe installed the GPS device on Jones’ car, they committed an deed of “trespass.”  Scalia’s logic was proudly originalist:  Trespassing to obtain incriminating data was forbidden when the Constitution was ratified; hence, it is forbidden today.  By resolving the instance that way, the Court sidestepped the privacy questions raised yesteryear surveillance technology similar GPS and—as Justice Alito’s concurrence position it, voicing skepticism shared yesteryear many observers—“attache[d] neat significance to something that most would catch equally relatively minor.” 

Fast forrad v years, in addition to Jones  has i time once to a greater extent than surfaced inward the populace conversation close privacy in addition to surveillance—this time, because of Judge Neil Gorsuch’s confirmation hearing. Gorsuch, himself an originalist, has made no hugger-mugger of his back upwards for the Jones holding. In response to questioning from Senator Orrin Hatch final Tuesday, Judge Gorsuch opined that "attaching something to somebody else's belongings would endure considered a search,” in addition to “that if that's a trespass in addition to a search 200 years ago, it has to endure today.” In sum, argued Judge Gorsuch, “the technology changes, but the principles don’t.”

This proposition—that fifty-fifty equally the globe surrounding law changes, the inwardness principles of law remain fixed—is key to originalist reasoning. We accept no ambition hither to resolve grand debates close the merits in addition to demerits of originalism writ large. What we do wish to betoken out, however, is that a commitment to fixed principles of law, though oftentimes associated amongst efforts to bound the reach of fundamental rights, tin also piece of employment inward the service of fundamental rights. 

Jones itself underscores the point. As nosotros recently argued inward the pages of the Harvard Civil Rights-Civil Liberties Law Review, the “trespass” regulation in Jones is best understood equally an “offensiveness” test. Did the police describe employ a fundamentally offensive investigative method to collect evidence? If so, that method should run across amongst Fourth Amendment scrutiny—and require a warrant. One example, equally in Jones, are investigative methods that require the police describe to physically intrude on private property. But the category is non in addition to so limited. Another instance (we combat inward the article) are investigative methods that involve intentional deception yesteryear law enforcement—such as United States v. Phua, a recent instance inward which the FBI cutting off the mesh to the defendant’s hotel room, in addition to gained “consensual” entry yesteryear having agents pretend to endure cable technicians answering a service call. 

This attempt out for offensiveness, it turns out, lines upwards amongst 18th-century expectations close the appropriate boundaries of dry ground power.  The Founders, too, worried close law enforcement officials behaving inward ways that shock a person’s “dignitary interest” inward the “inviolability” of his or her possessions.  

To consider what nosotros mean, i bespeak only human face to United States v. Ackerman, a recent 10^th Circuit opinion written yesteryear none other than Judge Gorsuch. As relevant here, the inquiry in Ackerman was whether a warrant is required for law enforcement to opened upwards an e-mail that has been flagged yesteryear an mesh service provider (“ISP”) equally probable to incorporate pocket-size pornography. The authorities argued that the reply should endure no—because, amidst other reasons, people accept no reasonable expectation of privacy inward emails they accept already shared amongst an ISP. 

Rather than indulge that argument, Judge Gorsuch opted to apply the Jones test, which, he thought, “pretty clearly” forbids the “warrantless opening in addition to exam of . . . private correspondence.” In reaching this conclusion, Judge Gorsuch analogized the opening of an e-mail to the opening of a private letter, both of which “qualify equally precisely the type of trespass [] that the framers sought to forestall when they adopted the Fourth Amendment.” To endure sure, whether opening an e-mail amounts to a literal trespass (akin, say, to tampering amongst a parked car) is non self-evident; it’s a thorny in addition to interesting question.  But Judge Gorsuch sidestepped that inquiry yesteryear pointing out that in the 18^th century, the mutual law went to neat lengths to protect private dignity inward the confront of dry ground power.  That elementary regulation was the both the beginning and the cease of the inquiry. 

Cases like Ackerman complicate the idea, mutual inward around media coverage of the confirmation process, that a judge’s penchant for constraining his legal reasoning to the application of really one-time principles tends to stunt the recognition of novel rights. In around cases, the purpose of really one-time principles tin accept the contrary effect. They tin assist judges abstract away from the technological details in addition to focus on what actually matters: whether the dry ground has exceeded the bounds of its legitimate authority. In around domains, originalists create better—or at least, just equally well—with this inquiry equally their progressive counterparts.

Does this hateful that the principles of constitutional law set downwards at the Founding are sufficient to combat amongst all the legal controversies nosotros confront today? No. Nor does it hateful progressives should concealment all of Judge Gorsuch’s views only because he, similar Justice Scalia earlier him, tends to converge amongst liberal Justices on matters of law enforcement in addition to criminal justice. But it does hateful that progressives should non lose sight of the skillful that tin come upwards of applying really one-time principles of law—or of the notably careful means that Judge Gorsuch, inward certainly domains, has carried out that enterprise.  

Kiel Brennan-Marquez is a postdoctoral research immature human at NYU Law School in addition to an affiliated immature human at ISP. You tin achieve him yesteryear e-mail at krb411@nyu.edu

Andrew Tutt is an Attorney-Adviser at the Office of Legal Counsel at U.S. Department of Justice, in addition to was until lately a Visiting Fellow at the Yale Information Society Project. You tin achieve him yesteryear e-mail at tutt.andrew@gmail.com. The views expressed hither are his alone, in addition to create non necessarily reverberate the views of the Department of Justice or the Office of Legal Counsel.