SUPREME COURT FOLLY – The Right to Privacy

A criminal defendant has claimed his cell phone, indicating the approximate location where he is, should be protected under his right to privacy pursuant to the United States Constitution. 
Despite the dubiousness of this claim of privacy, the Supreme Court luggards might approach this claim and case in their traditional way, citing off-point cases to interpret the Fourth Amendment and relying on antiquated sources from the Ivy League – the Brandeis/Warren Law Review, 4 Harvard Law Review 184 (1890).

The Fourth Amendment reads,

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment suggests guidelines, if the information sought is not public, or is using a public conveyance or utility. Once activities, thoughts, or actions come within the public’s scrutiny or knowledge, a citizen loses many protections of the Fourth Amendment. When in public there is no reasonable expectation of privacy. If public, what is an “unreasonable search and seizure” becomes a much larger group of behaviors, acts and manifestations.

A proper analysis of the Right to Privacy is not found in the Fourth Amendment. It is found in the Ninth Amendment of the United States Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment infers the proper relationship between the American people and the national government. The Constitution is a grant of powers to the national government from the American people. Enumerated rights are listed, but it is an incomplete list. The First Congress and the writers of the Constitution did not want to construe, identify and enumerate all rights they could conceive. Thereafter, a right not listed could not be used by individuals against the national government. [This point was made clear in the Virginia Ratifying Convention, circa June 20, 1788, and related correspondence of James Madison, Edmund Pendleton and other delegates.)

What is the Right to Privacy? It was unknown during the country’s founding. However today, all Americans rely on it but have vague ideas of what it means, what it covers and its full extent. The right to privacy, or something like it, appears in Constitutions and in statutes of other countries. Those sources can help define and describe, but any constructed right of the American people must be interpreted and consistent with all other sections and amendments of the Constitution, plus state and federal statutes.

In 1776 James Madison and George Mason, the primary writer of the Virginia State Constitution, made Freedom of Religion a basic right in the Virginia document. However, the state government taxed Virginians to pay the salaries and other expenses of church personnel and of churches. Madison and his constituents believed this government involvement favored certain sects over newer sects. In 1785 in the House of Burgesses Madison proposed passing an Establishment Clause for Virginia. Madison desired Freedom of Conscious – believe and think what you want. Do not expect Virginia to favor and support your beliefs. Madison set forth America criteria. His efforts were successful by 1786. Thereafter, churches (Episcopalians, Baptists, Methodists, Quakerism, Judaism ), on one hand, and Virginia, on the other hand, were separate.

In Memorial and Remonstrance Against Religious Assessments (commonly known as Remonstrance) Madison construed the argument for the Establishment Clause in Virginia and for the first Right listed in the First Amendment of the United States Constitution: “Congress shall make no law respecting an establishment of religion…” The Remonstrance is the only writing where Madison, a Constitutional master unique in all of history of this country or other countries, demonstrates in a flush of pure reason how to construct a Constitutional liberty or right. Madison sufficiently separates the Establishment of Religion from the Free Exercise of Religion.

No American has defined and demarcated any other individual or civic right so clearly and fully as Madison. The Remonstrance presents guidelines, arguments and analyses that Americans should follow regarding any right not enumerated under the Constitution i.e. the Ninth Amendment. The Right to Privacy, as an unenumerated Right under the Ninth Amendment, should require the justices of the Supreme Court begin the construction of that liberty.

What is privacy? What is public? What is semi-private? What is available to the public for a price? What is semi-public? The Fourth Amendment provides narrow guidelines – security in homes and of persons when there is no warrant. But when an individual is abroad – out-of-doors – everything changes. When making a telephone call on a network, the cops cannot listen without a warrants, but indivuduals sometimes listen in. With a cell phone every American can be located, approximately. Is an individual’s location private when he is out in public?  Perhaps in a public restroom although he can be arrested from that location.

The First Amendment – the right to free speech and the right to a free press – have greatly limited the right to privacy torts in civil law. There are dozens of exceptions and excuses from the tort. Again, the Brandeis/Warren article, cited above, urges strict guidelines, which no longer fit the modern society America finds itself in.

Brandeis and Warren like Madison in the Remonstrance noted changes in society and use the current state of American society to define and delineate a liberty. Likewise, privacy today should discuss the commercial realities, benefits and demerits. Today’s case law reflects the move toward greater freedom of speech and the press; it disfavors privacy. Criminal law investigations, specially when documents, objects or speech is public, eliminates privacy.

Today, the collection of phone and cell tower data is not confined to law enforcement. Cell phone traffic and analyses allows providers to improve phone service. It lets cell phone makers improve phones and make their products more capable. And the gross data may let marketers provide goods and services where they are currently unavailable. Note when Samsung had issues of burning phones, it was imperative to contact and locate each of their phones and their owners, easily done because there was a customer list.

Most Americans believe this collection reasonable and beneficial to their society. Most information is available to non-government corporations and entities, businesses and enterprises without warrants, probable cause or reasonable suspicion. The investigation, investment and commerce flowing from data analyses makes life in America better.

If the data are misused, there may be violations of statutes. There are alternatives. If an American does not want to be located, approximately, turn off the phone designated to his name, and buy and use a burn phone. Note that phone purchase usually is monitored by cameras and memorialized by receipts – that investigation is not limited by an individual’s privacy rights. Note further an individual does to have to use credit cards or retail membership cards, where data including locations are made. Get off the grid; Americans can use cash which is anonymous.

Attempting to weave the Right to Privacy around a semi-public instrumenting like a cell phone use requires detailed analysis which is convoluted, complicated and cannot not be part of a Constitutional Right. Note the length of the two Amendments, cited above, no longer than 75 words apiece. Principles and exceptions for the right of privacy for criminals in cell phone use would be prolix, unreasonable and unworkable. There would be no precedents, only singular exceptions.

It is noteworthy that third party claims to a Right to Privacy on behalf of customers can be affected by the ruling of cellphone location privacy rights. The secondary rights of a third party to claim privacy on behalf of customers who are usually criminal suspects is flimsy. Law enforcement officials usually have the suspect’s cell phone and a warrant meeting all the requirements of the Fourth Amendment.

Corporate behaviors become more egregious when one realizes these corporations readily cooperate with foreign governments and provide access, information and account data accumulated from the customers in those countries. Yet they refuse to cooperate with the National government in criminal investigations.