"Justice Scalia, Privacy, and Where We Go From Here" by Rachel Levinson-Waldman, originally published on Just Security, on February 19, 2016.
When you work in privacy and civil liberties, you get accustomed to having strange bedfellows. Senator Bernie Sanders, Democratic socialist presidential candidate from Vermont, turns out to be united with Rand Paul, firebrand libertarian from Kentucky, in opposition to NSA surveillance. The American Civil Liberties Union and National Rifle Association have common concerns about government registries of lawful gun owners.
The privacy community’s tempered love affair with Justice Antonin Scalia, who passed away on Saturday, was no different. While some of its progressive members may have shuddered at the justice’s oratory in cases involving gay rights, employee protections, and more, his rhetoric on privacy was a different matter. Throughout his tenure on the Supreme Court, Scalia wrote or joined some of the most privacy-protective majority opinions, and penned some of the most blistering dissents, in cases he felt gave short shrift to Fourth Amendment concerns.
His dissent in a 2013 case, Maryland v. King, is a classic example of Scalia in full outrage mode. In King, the Court upheld a Maryland statute permitting police officers to take DNA samples from suspects arrested for certain serious crimes. Scalia wrote a scathing dissent, warning of the slippery slope from taking DNA for serious offenses to getting DNA at a traffic stop. He predicted that as an inevitable consequence of the majority’s decision, “your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
Scalia also wrote the opinion that would come to protect millions of pot growers from warrantless government snooping. In Kyllo v. United States, federal agents used a thermal heat scanner to determine that Danny Lee Kyllo’s triplex was giving off so much heat, it could only be growing marijuana. Scalia, writing for the majority, required police to get a warrant to use this “sense-enhancing technology.” Notably, he called it “foolish” to suggest that the “degree of privacy” the Fourth Amendment guarantees “has been entirely unaffected by the advance of technology.”
And, in United States v. Jones, he brought together a majority of his colleagues to hold that when law enforcement officers install a digital age GPS tracker on a suspect’s car — here, enabling the police to track Antoine Jones cheaply and ceaselessly over the course of a month — they must get a warrant first.
Taken together, these cases show a justice committed to privacy in the digital era. At the same time, as an “originalist,” Scalia grounded his rulings in his loyalty to the written text and original intent of the Constitution, specifically the Fourth Amendment.
In King, he premised his objection to DNA collection on the Founders’ opposition to general warrants, tools of the Crown that allowed British inspectors to gather anything and everything related to a supposed crime. Scalia also pointed to the fact that forced DNA collection invades the body, directly undermining the constitutionally guaranteed right of citizens to be “secure in their persons.”
In Kyllo, Scalia emphasized that while considerations of new technologies may be complicated, this case was actually simple: It related to the inside of a home, a core interest protected by the Fourth Amendment. Justice Scalia therefore demanded that the Court draw a line at the house’s threshold that is “not only firm but also bright.”
Jones was an easy case for Scalia as well: The fact that the police attached a stand-alone GPS tracker (rather than using a manufacturer-installed device) meant they had trespassed on private property, a clear-cut Fourth Amendment invasion.
Of course, there are several ways to analyze the law and arrive at similar conclusions. Justice Scalia’s colleagues often stepped beyond the text of the Fourth Amendment, grappling more directly with how advances in technology have changed the nature of day-to-day privacy and other constitutional rights. In Jones, for instance, Justice Sonia Sotomayor described the vast power the government could wield with a device that enables constant tracking, as well as its susceptibility to abuse, noting that GPS tracking produces a record that “reflects a wealth of detail” about an individual’s “familial, political, professional, religious, and sexual associations.” Justice Samuel Alito observed that it is “almost impossible” to come up with late-18th-century analogues to electronic GPS devices, puckishly remarking that accomplishing the same kind of tracking in 1791 “would have required either a gigantic coach, a very tiny constable, or both.”
In the same vein, Chief Justice John Roberts’s majority opinion (which Scalia joined) in Riley v. California rejected the government’s bid to warrantlessly search a modern-day cell phone acquired in the course of an arrest. The opinion was highly sensitive to the practical impact of developing technologies, observing that “modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
While Justice Scalia may have been particularly concerned about invasions of the home and the body — the protected areas outlined in the Fourth Amendment — concerns about privacy in the digital age are compatible not just with those who see the Constitution as a living document but with originalism as well.
The Founders were concerned about entry into the home, body, and papers because that is what agents at the time were capable of doing. They surely could not have foreseen technologies that yield weeks and months of fine-grained details about citizens’ movements, associations, political proclivities, and more. Critically, the collection of all of that information — so convenient for sifting through to find evidence of a past or even future crime — looks a lot like the general warrants that helped light the fire of the American Revolution.
If the lens is expanded to include the First Amendment, the government’s ability to collect just about anything, and keep it on hand just in case, can have a substantial impact on citizens’ willingness to do anything that could be the target of government scrutiny. This could include associating with disfavored groups, engaging in religious observance outside the mainstream, or protesting on political issues. In light of the DC Circuit’s comment that the Fourth Amendment was adopted in large part to “provide citizens with the privacy protection necessary for secure enjoyment of First Amendment liberties,” any infringement on First Amendment rights should be of grave concern to Fourth Amendment purists as well.
Attentiveness to privacy in the digital age should thus be front and center for any jurist, whether focusing on the text of the Fourth Amendment, the purposes for which it was signed, or our new world that the Founders scarcely could have imagined. Regardless of whom President Obama appoints to the Court, privacy in the 21st century is something on which many bedfellows can agree.