The Fourth Circuit made headlines yesterday in United States v. Graham, which holds in part that “warrantless procurement of [cell site location information] was an unreasonable search” in violation of the Fourth Amendment. There’s a lot going on in the Graham majority and dissent, and I recommend Orin’s ongoing posts on the merits. But it’s also interesting to consider Graham’s treatment of Supreme Court precedent regarding the “third-party doctrine.”
In my view, much of the disagreement between the majority and dissent in Graham is about whether to adopt the best reading of the Supreme Court’s third-party precedents or, instead, to narrowly read those precedents in light of new factual developments, other Supreme Court precedents, and the lower-court judges’ own first-principles views of the law. In this respect, Graham is hardly anomalous. When doctrines become out of date, the Court sometimes encourages lower courts to engage in narrowing from below, thereby facilitating the Court’s own reconsideration of precedent. The third-party doctrine is properly viewed as such an area.
The biggest flash point in Graham had to do with the third-party doctrine. As the Graham majority put it: “The Supreme Court held in Miller and Smith that ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’” Given that precedential rule, the question for the Fourth Circuit was whether the defendant in Graham had “voluntarily turn[ed] over” his cellphone locational information to his service provider.
Smith itself strongly suggests that the third-party doctrine applies to locational information relating to telephone calls. In Smith, the government had relied on a telephone provider to determine that that “on March 17 a call was placed from [the defendant’s] home to [the victim’s] phone.” The defendant accordingly moved to suppress “that a phone call had been made from petitioner’s phone to [the victim’s] phone.” In considering that motion, courts below had asked whether “individuals do have a legitimate expectation of privacy regarding the phone numbers they dial from their homes.” And the Court ultimately held that individuals lacked a legitimate expectation of privacy in connection with phone numbers dialed from their homes. So at every step, Smith evinced awareness that what was at stake wasn’t just the fact of certain numbers being dialed, but rather the fact that certain numbers had been dialed from a specifiable location, namely, the defendant’s home. Without that locational fact, the phone number information wouldn’t even have been incriminating.
Yet the Graham majority held that Smith didn’t apply to cellphone locational information. Why? Because cellphone users like the Graham defendant don’t “actively submit any location-identifying information when making a call or sending a message.” The majority actively uses the adverb “actively,” noting that the cell locational information wasn’t “actively disclosed” or “actively submit[tted].” As Judge Motz’s dissent fairly points out, this “actively submit” requirement “is nowhere to be found in either Miller or Smith.” (Notably, the majority’s key passage on this point relies primarily on a vacated Texas district court ruling—not exactly the Fourth Circuit’s conventional source of precedential guidance.) Motz further observes that the implications of the majority’s “actively” requirement would unsettle many longstanding applications of the third-party doctrine, such as third-party disclosures regarding calls that a defendant has received rather than transmitted. Finally, and as I’ve explained in my previous paragraph, the facts and language of Smith strongly undermine the “actively submit” rule, since the defendant in Smith didn’t actively type in his location or address when placing his phone call.
But if Smith was best read to apply, then why didn’t Graham follow it? Because, in the Graham majority’s view, the third-party doctrine doesn’t really make sense today. As the majority puts it: “Courts and commentators have for years begun to acknowledge the increasing tension, wrought by our technological age, between the third-party doctrine and the primacy Fourth Amendment doctrine grants our society’s expectations of privacy.” Judge Thacker’s concurrence likewise argues for an approach that “errs on the side of protecting privacy and accounts for the practical realities of modern life.” The majority even quoted Orin’s observation that Smith is “the Lochner of search and seizure law”–which, coming from the court, sounds like an assertion that Smith can be treated as a kind of anti-precedent. By contrast, the dissent thought that the third-party doctrine “makes good doctrinal sense” when applied to non-content information like locational information.
Graham is thus best defended as a case about “narrowing Supreme Court precedent from below”—that is, about a lower court’s authority to adopt a reading of higher-court precedent other than the best reading of that precedent. As explained above, the dissent was right that Smith is best read to apply to the facts in Graham. But if narrowing from below is legitimate, then the best reading of Smith can’t resolve the question presented in Graham. The Smith Court couldn’t have contemplated smartphones or other technologies that lay decades in the future. So instead of clearly applying to smartphones, Smith can reasonably be read as defeasible, that is, as subject to an unstated exception for new digital technologies that allow for vastly expanded surveillance. The Fourth Circuit could then choose to read Smith in that reasonable way, based on its own first-principles view of the Fourth Amendment. (I explore this line of thought at length in a new paper I’m working on.)
Supporting that approach, the Supreme Court’s opinion in Riley interpreted another pre-digital precedent so that it didn’t apply to smartphones, even though the old precedent by its own terms and reasoning was “categorical” in applying to any physical object on an arrestee’s person. As I’ve previously suggested (and argue in the new paper), Riley can be viewed as a signal to lower courts that old Fourth Amendment precedents may be narrowed in light of new digital technologies. The Graham majority placed some weight on Riley and so may have picked up on that signal.
In sum, Graham illustrates that lower courts often narrow Supreme Court precedent from below—and have good reason to do so.
First posted on Prawfs.