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Neil Gorsuch is shaping up to be an unlikely defender of your privacy

Neil Gorsuch has already signaled a break with his fellow conservatives on Fourth Amendment issues.

by Carter Sherman and Isabella McKinley Corbo
Feb 20 2018, 4:45pm

Newly appointed Supreme Court Neil Gorsuch is, of course, far from liberal. Not only was he appointed by President Donald Trump, he’s often portrayed as a clone of one of the court’s most conservative justices, Antonin Scalia.

But when it comes to protecting privacy rights, Gorsuch has already signaled a break with his fellow conservatives on the bench. He may even become the Supreme Court's next swing vote on Fourth Amendment issues.

"Obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.” — Neil Gorsuch

This term, Gorsuch will participate in several cases that review just how far law enforcement can stretch the property and privacy protections granted by the Fourth Amendment, including what cops need a warrant to search. That’s an issue where Gorsuch dealt blows to law enforcement — four times, in fact — while serving on Colorado’s 10th Circuit Court. Those decisions outlined his concerns about police intrusion into Americans’ homes as well as cops’ increased reliance on technology, the same issues at stake in this term’s cases.

“Privacy tends to be one of those rare topics in Washington these days that isn’t polarized by politics,” said Jody Blanke, a professor of computer science and law at Mercer University. “It’s an area where there’s overlap between liberals and libertarians: a liberal interest in civil liberties and a more conservative interest in not having the government intrude.”

Digital privacy

Gorsuch’s first chance to tackle the Fourth Amendment as a Supreme Court justice arrived in November with a case that will decide whether police need a warrant to search cell phones’ historical location data, Carpenter v. United States.

Usually, cops need a warrant for a search when someone has a “reasonable expectation of privacy.” But when the FBI wanted to look at months of Timothy Carpenter’s cell phone location data in connection with a string of armed robberies, they didn’t get one. Because a third party — in the form of a cell phone provider — held that data, the agency didn’t need to under current law. Carpenter, who was eventually convicted for the crimes, later challenged the warrantless search.

READ: Your digital privacy rights will be redefined by this Supreme Court case

The “reasonableness” test is often difficult for constitutional originalists like Gorsuch and Scalia to swallow. It’s tough to figure out what a founding father in 1789 would deem “reasonable” in a world populated by smartphones and unprecedented government surveillance.

Police departments across the country use military-developed technology, like this StingRayII device, that can track down suspects by using the signals emitted by their cellphones. (U.S. Patent and Trademark Office via AP, File)

During his tenure on the bench, Scalia spearheaded a judicial pivot away from the “reasonableness” test — a direction Gorsuch seemed to follow during Carpenter’s arguments. Instead of focusing on privacy, he wanted to know: What if Carpenter’s records were, in fact, his property?

Gorsuch asked attorneys for both sides whether it would make a difference if Carpenter’s data was stolen from a T-Mobile store. “Under my hypothetical, you have a property right in this information. Would it be a search of my paper and effect? Yes or no,” he asked the lawyer representing the U.S. government.

Gorsuch’s questions were “the big surprise of the day,” as University of Southern California Law professor Orin Kerr said in a podcast for the national security blog, Lawfare. “What’s striking is that he was suggesting some really novel ideas for what would make for a property right.”

READ: How cops hack into your cell phone without a warrant

Defending the home

Gorsuch once wrote a caustic dissent about searching private property that could apply to a case now in front of the Supreme Court: Collins v. Virginia.

While serving on the 10th Circuit, Gorsuch argued police officers had illegally searched a homeowner’s property when they walked onto the house’s “curtilage” — structures that surround a house, like a porch or garage — and knocked on a suspect’s door after ignoring several “No Trespassing” signs. Curtilage is a legal concept so old, it predates the United States.

“The government appears to be moved by the same worry: that if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage their job of ferreting out crime will become marginally more difficult,” Gorsuch wrote in the March 2016 opinion. “But obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits.”

“You can search something that is on the open seas or in a — in a harbor or on the streets, not that you can go into a home to find one." — Neil Gorsuch

That same logic could also apply to Collins, which debates whether cops need a warrant to search an automobile, parked inside a house's curtilage. Historically, cars don’t require search warrants. While hearing arguments, Gorsuch seemed skeptical of allowing police to proceed without a warrant and compared cars to ships.

“You can search something that is on the open seas or in a — in a harbor or on the streets, not that you can go into a home to find one,” he told the government’s lawyer, appearing to admit that he considers curtilage is an extension of the inviolable American home. “That seems to me categorically — a category mistake that you're making in your argument.”

That kind of questioning could make Gorsuch “our new swing justice” on Fourth Amendment issues, as Cornell Law School professor Sherry Colb tentatively dubbed him. Since the usually-liberal Justice Stephen Breyer tends to vote with conservatives in Fourth Amendment cases, Gorsuch’s vote could give the liberals on the bench a chance to prevail such cases anyway.

Still, in 16 of the 20 Fourth Amendment cases Gorsuch heard on the 10th Circuit, he ruled in favor of law enforcement. And even if Gorsuch decides to protect privacy rights in the home, he may not defend them outside — much like Scalia did.

“The home to [Scalia] was very sacred, so even if something wasn’t deserving of Fourth Amendment protections out there in the world, there’s something about the home. And that seems to be replicated here with Gorsuch,” Colb said. “It remains to be seen what he thinks when you leave the house.”