Bailment Law as Part of a Property-Based Fourth Amendment Framework

Category: Print Issues

Bailment Law as Part of a Property-Based Fourth Amendment Framework

Jeremy Hall

Volume 28

, Issue 1

28 GEO. MASON L. REV. 481 (2020)

Introduction

“We kill people based on metadata,” affirmed former National Security Agency (“NSA”) and Central Intelligence Agency (“CIA”) director, General Michael Hayden, at a debate at Johns Hopkins University in 2014.¹ The “people” General Hayden was talking about, of course, are terrorists—and various US government metadata collection programs have been a key part of the global war on terror since the 9/11 attacks.² After the Snowden revelations regarding the NSA’s surveillance programs, including bulk metadata collection, President Obama claimed that “[w]e know of at least 50 threats that have been averted because of this information.”³

What is metadata? Broadly speaking, metadata is simply “data about data.”⁴ In the electronic communication context, “metadata” is distinguished from “content”—while content “reflects the substance of an electronic communication,” metadata reflects “all other information about the communication, such as parties, time, and duration.”⁵ The NSA’s bulk metadata collection programs have been the subject of intense scrutiny, controversy, and even litigation,⁶ largely stemming from concerns that the programs violate a person’s Fourth Amendment right to be free from unreasonable searches and seizures.⁷ Debate over NSA programs has continued during temporary extensions of statutory authority.⁸

But the NSA is not the only actor in the metadata collecting business—domestic law enforcement agencies can also access and use metadata for investigative purposes, without a warrant, through the third-party doctrine.⁹ The third-party doctrine, which one commentator described as holding that “anything you tell anyone else . . . does not fall within the protections of the Fourth Amendment,”¹⁰ arose as an exception to the Supreme Court’s “reasonable expectation of privacy” test set out in Katz v. United States.¹¹ As outlined in Justice Harlan’s concurrence in Katz, the reasonable expectation of privacy test has two requirements: “first that a person ha[s] exhibited an actual (subjective) expectation of privacy, and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”¹² Subsequently, in United States v. Miller¹³425 U.S. 435 (1976). and Smith v. Maryland,¹⁴ the Supreme Court established the third-party doctrine, which “asserts that a person cannot have a protected privacy interest in information voluntarily turned over to a third party.”¹⁵

The third-party doctrine, which has been widely criticized by a broad range of scholars,¹⁶ was recently addressed in 2018 by the Supreme Court in Carpenter v. United States.¹⁷ At issue in that case was warrantless law enforcement collection of a type of telephone metadata called cell-site location information (“CSLI”).¹⁸ Ultimately, the Court held that warrantless access to seven or more days’ worth of CSLI violated an individual’s “legitimate expectation of privacy.”¹⁹ The majority maintained that the third-party doctrine of Smith and Miller was still intact, emphasizing that the decision in Carpenter was a “narrow one,” and did not address “matters not before us.”²⁰

The narrowness of the Court’s holding in Carpenter, combined with “conceptual shortcomings” in the majority’s reasoning and dissents by Justices Thomas and Gorsuch in particular, have led some commentators to predict that “the case will eventually be bigger than its holding.”²¹ Justice Gorsuch’s dissent specifically has been described as an “opening salvo” in a “career-long attempt to re-work the Court’s Fourth Amendment jurisprudence.”²² Justice Gorsuch stated that “many types of information now covered by the third-party doctrine should be protected by the Fourth Amendment.”²³ He argued that instead of following the Katz “reasonable expectation of privacy” test, the Court could return to the traditional pre-Katz approach, which asked simply “if a house, paper, or effect was yours under law.”²⁴

While Justice Gorsuch left many questions unanswered, he suggested a framework for further research and outlined five starting principles.²⁵ This Comment focuses on Justice Gorsuch’s first principle: “the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them.”²⁶ In his brief discussion of this point, Justice Gorsuch raised the possibility that the “ancient principles” of bailment law “may help us address modern data cases too,” stating that “[j]ust because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents.”²⁷

In essence, a bailment is a “delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose.”²⁸ The relationship between bailor and bailee imposes certain rights and obligations on both parties with respect to the property in question.²⁹ This Comment maintains that bailment law—specifically, the principle that a bailee is held strictly liable for conversion for misdelivery of a bailment—provides a helpful foundation for an updated traditional, property-focused Fourth Amendment framework.³⁰

To that end, Part I of this Comment explores the background of Fourth Amendment jurisprudence, surveying its doctrinal evolution in the Supreme Court. Part II explores how bailment law provides a crucial piece of an updated property-based framework for Fourth Amendment jurisprudence. Additionally, considering Justice Gorsuch’s admonition that Mr. Carpenter “did not invoke the law of property or any analogies to the common law,”³¹ Part II then identifies how litigants could make arguments based on bailment law in cases similar to Carpenter.

I. The Evolution of the Supreme Court’s Fourth Amendment Jurisprudence

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” and requires that warrants have “probable cause, supported by Oath or affirmation, and particularly describ[e] the place to be searched, and the persons or things to be seized.”³² The Fourth Amendment was designed to “secure liberty,”³³ and it “reinforced the right of the people, as sovereign, to determine the conditions under which the government could intrude in their lives.”³⁴ The Fourth Amendment was adopted in “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”³⁵

In contrast to the view that the Fourth Amendment originally merely required that searches and seizures be “reasonable,”³⁶ Professor Laura Donohue argues that the Fourth Amendment should be understood as “a prohibition on general search and seizure authorities and a requirement for specific warrants.”³⁷ Donohue states that “the first clause outlaws promiscuous search and seizure” and the second clause “clarifies precisely what will be required for a particularized warrant to be valid.”³⁸ At the time the Fourth Amendment was drafted, “unreasonable” simply meant “against the reason of the common law,” rather than the modern “relativistic” sense of evaluating “what could be considered more or less reasonable.”³⁹

In early cases, the Supreme Court utilized traditional property law concepts to determine if the government had violated the Fourth Amendment.⁴⁰ Then, in Katz v. United States, the Court transformed Fourth Amendment jurisprudence by adopting a “reasonable expectation of privacy” test.⁴¹ In United States v. Miller and Smith v. Maryland, the Court carved out an exception to the Katz rule which has become known as the third-party doctrine.⁴² Recently, in United States v. Jones,⁴³ the Court stated that Katz had not extinguished the traditional test—rather, the two tests exist as alternative ways of identifying when an individual’s Fourth Amendment rights have been violated.⁴⁴ Finally, in Carpenter v. United States, the Court—rather than formally overturning Miller and Smith or even Katz itself—instead created an exception to the third-party doctrine for warrantless CSLI collection lasting seven or more days.⁴⁵

A. The Early Cases: Property Law Framework

The Supreme Court’s early interpretations of the Fourth Amendment utilized a “property-centric” approach, closely adhering to the text of the amendment.⁴⁶ In a series of cases examined below, the Court used that approach to deal with various physical intrusions affecting individuals’ physical property, such as “houses, papers, and effects.”⁴⁷ Under this approach, the Court’s Fourth Amendment jurisprudence largely focused on “whether a search had taken place,” defining a search as a “physical intrusion [into] a constitutionally protected area in order to obtain information.”⁴⁸

1. Examples of the Court Applying a Property Law Framework in Early Cases

For example, in Ex parte Jackson,⁴⁹ the Court applied the Fourth Amendment to different kinds of mail, holding that—unlike newspapers, magazines, and pamphlets, which are “purposely” left “open to inspection”⁵⁰—letters and sealed packages were protected under the Fourth Amendment “as if they were retained by the parties forwarding them in their own domiciles.”⁵¹ The Court identified that the rights of individuals “to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be,” and held that sealed mail could only be accessed by the government through the same kind of particular warrant required for searching papers in someone’s house.⁵²

The Court subsequently recognized, in Weeks v. United States,⁵³ that the Fourth Amendment’s protection against warrantless searches of one’s home, papers, and effects extends even to a person accused of a crime.⁵⁴ In Weeks, the Court reversed the conviction of an individual after the lower court admitted into evidence letters taken from the house of the individual by a United States marshal without a warrant.⁵⁵ The Court noted that “[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense,” the Fourth Amendment “is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”⁵⁶ The Court observed that the Fourth Amendment was adopted on the principle that “a man’s house was his castle and not to be invaded by any general authority to search and seize his goods and papers.”⁵⁷

In Agnello v. United States,⁵⁸ the Court similarly held that, while the government has a right to conduct a contemporaneous warrantless search of a person “lawfully arrested while committing crime,” and even to search the location of the arrest, that right “does not extend to other places.”⁵⁹ In Agnello, police arrested an individual involved in a suspected drug deal and proceeded to search his house, which was several blocks away from the location of the arrest.⁶⁰ The Court observed that “it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein.”⁶¹ As the search of the individual’s home was not “incident to a lawful arrest,” it violated the Fourth Amendment—which the Court held extends equally to “those justly suspected or accused, as well as to the innocent.”⁶²

These cases illustrate the property framework underlying the Court’s early Fourth Amendment jurisprudence and show how concerned the Court was with protecting private “houses, papers, and effects” against warrantless intrusion by the government.⁶³

2. Persistence of the Property Law Framework Despite Technological Change

Changes in technology did not initially lead to a change in Fourth Amendment doctrine.⁶⁴ In Olmstead v. United States,⁶⁵ which has been called the “classic case” illustrating the Court’s property approach to the Fourth Amendment,⁶⁶ the Court extended the physical trespass approach to the wiretapping context, distinguishing letters, which are protected under the Fourth Amendment, from telegraph or telephone messages, which are not.⁶⁷ In Olmstead, federal prohibition officers intercepted telephone messages without trespassing on the defendants’ property by placing wiretaps on the street near the defendants’ houses and in the basement of an office building.⁶⁸ Rejecting an argument by analogy to Ex parte Jackson, the Court drew a difference between sealed letters and telephone messages, reasoning that “[t]he evidence was secured by the use of the sense of hearing and that only,” and “[t]here was no entry of the houses or offices of the defendants.”⁶⁹

Justice Brandeis dissented in Olmstead, arguing that “clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.”⁷⁰ Brandeis, joined explicitly by Justice Stone and implicitly by Justice Butler, offered a different approach than the property-focused majority.⁷¹ Brandeis focused on the privacy of the defendants, rather than the physical location of the telephone wires, stating that “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”⁷²

Justice Brandeis’s dissent would lead to forty years of scholarly commentary against the “narrow trespass theory reasoning of Olmstead,” and ultimately foreshadowed the Court’s decision in Katz.⁷³ However, in 1928, all of that was the unknown future. The state of the Court’s Fourth Amendment jurisprudence at the time is summed up by the following passage from the Olmstead opinion:

Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure.⁷⁴

Professor Donohue observes that the Court’s failure in Olmstead was not in applying its property framework correctly—the telephone wires did “lay outside the home,” after all—but in “failing to recognize that through wiretapping, the government gained access to the intimate details of the speakers’ lives—details ensconced in their persons, houses, papers, and effects.”⁷⁵ The reaction of the other branches of government seems to support this view: Congress responded to Olmstead by making unauthorized wiretapping a federal crime, and President Roosevelt pardoned Mr. Olmstead, “restoring all of his constitutional rights, and remitting the $8,000 fine assessed against him, in addition to $2,288 in court costs.”⁷⁶

Despite the negative reaction to Olmstead, the Court continued to utilize the strict physical trespass rule. The Court concluded in Goldman v. United States⁷⁷316 U.S. 129 (1942). and Silverman v. United States,⁷⁸ respectively, that “microphones placed against the wall of an adjoining room did not trigger Fourth Amendment protections, but a ‘spike mike’ that physically pierced the property [via sound conveyed through a heating duct] did.”⁷⁹

B. Katz Changes Things

In 1967, the Supreme Court shifted from the property-focused approach to a privacy-focused approach in the key case of Katz v. United States. In Katz, FBI agents used a device attached to the outside of a public phone booth to listen to and record the defendant’s calls.⁸⁰ The Court of Appeals, applying the test from Olmstead, held that the Fourth Amendment had not been violated because “[t]here was no physical entrance into the area occupied by [the petitioner].”⁸¹ Overturning what it called the “narrow,” “discredited” trespass test the Court had previously articulated in Olmstead, the Katz majority in the Supreme Court held that “the reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”⁸²

1. Katz’s “Reasonable Expectation of Privacy” Test

In overturning Olmstead, the Katz Court went further than merely updating the Fourth Amendment in its application to new circumstances involving telephone technology.⁸³ Indeed, the Court fundamentally altered the scope of Fourth Amendment protections by asserting that “the Fourth Amendment protects people, not places.”⁸⁴ This idea resulted in an expansion of “the conception of the Fourth Amendment beyond guarding only against physical intrusions.”⁸⁵ While the majority did not articulate exactly how this new principle would work, Justice Harlan’s concurrence established the now-familiar two-prong “reasonable expectation of privacy” test.⁸⁶ The first prong requires that a person must have “exhibited an actual (subjective) expectation of privacy.”⁸⁷ The second prong requires that the expectation must “be one that society is prepared to recognize as ‘reasonable.’”⁸⁸

2. The Third-Party Doctrine’s Limitation on Privacy

Regardless of how revolutionary one thinks Katz’s “reasonable expectation of privacy” formulation was,⁸⁹ the Court subsequently created “broad exceptions” to the test, such as the third-party doctrine.⁹⁰ As articulated by the Supreme Court, the third-party doctrine “draw[s] a line between what a person keeps to himself and what he shares with others.”⁹¹ Justice White predicted the rise of the third-party doctrine in his Katzconcurrence, recognizing the possibility of an “implie[d] assumption of risk” when someone shares information with another party.⁹²

In United States v. Miller, the Court officially articulated the third-party doctrine, relying on the assumption of risk theory to hold that the government could acquire bank records without a warrant, even if customers believed the records were confidential.⁹³ Essential to the Court’s holding was the conclusion that the records in question were the property of the bank, not the defendant.⁹⁴ Miller is still cited by the Court as the origin of the third-party doctrine.⁹⁵

Just three years later, in Smith v. Maryland, the Court extended the third-party doctrine to cover information shared with telephone companies.⁹⁶ In Smith, the Court again applied the assumption of risk theory, this time to reason that the defendant “voluntarily conveyed” information to the phone company when he made a local phone call and thus “assumed the risk” that the phone company would reveal that information to the police.⁹⁷ In Smith, the information the government collected consisted of telephone numbers that the defendant had dialed—obtained through a pen register⁹⁸—but not the contents of the calls themselves.⁹⁹

The majority concluded that because the defendant voluntarily conveyed information to a third party, the defendant had no “legitimate” expectation of privacy.¹⁰⁰ The majority’s reasoning did not go unchallenged—Justice Marshall argued in dissent that an essential element of assumption of risk is “some notion of choice” not present in that case,¹⁰¹ an argument later used by the majority in Carpenter to differentiate that case from Smith.¹⁰²

Scholars have widely criticized the third-party doctrine.¹⁰³ Furthermore, as Professor Orin Kerr points out, “[o]ver a dozen state Supreme Courts have rejected the doctrine under parallel provisions of their state constitutions,” and even United States Supreme Court opinions applying the doctrine “ha[ve] never offered a clear argument in its favor.”¹⁰⁴ And while the majority in Carpenter carved out an exception to the third-party doctrine rather than overturn it,¹⁰⁵ Justice Gorsuch’s dissent was highly critical of the doctrine.¹⁰⁶

3. Despite Katz, the Property Framework is Still Viable

Recent cases show that the Court’s older property-based framework persists despite the introduction of the “reasonable expectation of privacy” in Katz—either because “Katz and its progeny did not completely excise property law from the Fourth Amendment,”¹⁰⁷ or because the Court subsequently re-introduced the property framework after Katz.¹⁰⁸

Regardless of which view of Supreme Court history is correct, in United States v. Jones, Justice Scalia’s majority opinion affirmed that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”¹⁰⁹ In Jones, the Court held that the installation of a tracking device on the defendant’s car was a Fourth Amendment search because “[t]he Government physically occupied private property for the purpose of obtaining information,” and the Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”¹¹⁰

In Jones, Justice Scalia summed up the Court’s Fourth Amendment jurisprudence by stating that “[a] trespass on ‘houses’ or ‘effects,’ or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.”¹¹¹ Thus Jones, as the “most significant case dealing with mass data surveillance before Carpenter,”¹¹² established that “[i]n a case where the government intrudes upon a constitutionally enumerated area—an ‘effect’ in the case of Jones—the Court has no need to turn to Katz.”¹¹³

C. Carpenter v. United States Adds an Exception to the Third-Party Doctrine

In Carpenter, the first significant Fourth Amendment case since Justice Scalia’s death,¹¹⁴ the Court dealt with the question of “whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.”¹¹⁵ Chief Justice Roberts’s majority opinion concluded that the answer was yes.¹¹⁶ Carpenter had four dissenting opinions, offering “three separate tacks.”¹¹⁷

1. Facts and Procedural History of Carpenter

In 2011, police attempting to catch a group responsible for robbing stores in Detroit acquired a list of cell phone numbers associated with the group from a suspect in the case, who identified fifteen other accomplices.¹¹⁸ Prosecutors then used that information to “obtain cell phone records for petitioner Timothy Carpenter and several other suspects” through “court orders under the Stored Communications Act.”¹¹⁹ The requests were granted, and judges ordered MetroPCS and Sprint—Carpenter’s wireless carriers—to disclose CSLI for Carpenter’s cell phone “‘at call origination and at call termination for incoming and outgoing calls’ during the four-month period when the string of robberies occurred.”¹²⁰ Between the two orders, “the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.”¹²¹

Prosecutors charged Carpenter with “six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.”¹²² Carpenter argued in a pre-trial motion that the CSLI evidence should be suppressed: “the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause,” but his motion was denied.¹²³ At trial, an expert witness from the FBI testified about CSLI, explaining that “each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used.”¹²⁴ Using CSLI, the expert witness “produced maps that placed Carpenter’s phone near four of the charged robberies.”¹²⁵ The government leaned on the CSLI information in its closing argument, and a jury convicted Carpenter of “all but one of the firearm counts,” resulting in a sentence of “more than 100 years in prison.”¹²⁶

The Sixth Circuit Court of Appeals affirmed, concluding “that Smith controlled and that Carpenter had no Fourth Amendment right to his CSLI,”¹²⁷ noting that “courts have not (yet, at least) extended [Fourth Amendment] protections to the internet analogue to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on an email, or IP addresses.”¹²⁸

2. Justice Roberts’s Majority Opinion

While Justice Roberts’s “wide-ranging” opinion applying the Katz “reasonable expectation of privacy” framework makes it difficult to identify precisely what constitutes the Carpenter test,¹²⁹ Roberts identified three factors supporting the Court’s conclusion that “the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection”: (1) the “deeply revealing nature of CSLI”; (2) “its depth, breadth, and comprehensive reach”; and (3) “the inescapable and automatic nature of its collection.”¹³⁰

The Court analogized to an ankle monitor to describe the government’s CSLI tracking, but it also noted that—unlike with other forms of surveillance—CSLI allows the government to “travel back in time to retrace a person’s whereabouts.”¹³¹ Trevor Burrus and James Knight of the Cato Institute observed that due to “the increased privacy interest and the decreased degree of third-party sharing, Roberts came to the ‘narrow’ holding that cell phone location data is a special case worthy of special protection, and thus the government must obtain a warrant for CSLI in most cases.”¹³²

3. Justice Kennedy, Justice Thomas, and Justice Alito’s Dissents

Justice Kennedy’s dissent, joined by Justice Thomas and Justice Alito, applied the Katz framework but “came to the opposite conclusion”—that “there is no reasonable expectation of privacy in the data because the cell-site location records are created and controlled by providers ‘which aggregate and sell this information to third parties,’ and because users voluntarily share location data for other purposes.”¹³³

In his dissent, Justice Thomas articulated what has been called a “stridently originalist position against Katz, the test of which he said ‘has no basis in the text or history of the Fourth Amendment.’”¹³⁴ Justice Thomas argued that the Katz test, in addition to departing from the text of the Fourth Amendment, has proved unworkable in practice.¹³⁵ He further argued that the case should turn not on “whether a search occurred,” but rather “on whoseproperty was searched,” concluding that “[b]y obtaining the cell-site records . . . the Government did not search Carpenter’s property.”¹³⁶

Justice Alito’s dissent, joined by Justice Thomas, also took on what has been called a “strident originalist position,” but unlike Justice Thomas, Justice Alito “focused on attacking the idea that a subpoena may be a search (while agreeing that the cell-site data was not Carpenter’s property).”¹³⁷ Justice Alito argued first that the majority “ignore[d] the basic distinction between an actual search . . . and an order merely requiring a party to look through its own records and produce specified documents.”¹³⁸ Second, Justice Alito pointed out that it was “revolutionary” that the majority “allow[ed] a defendant to object to the search of a third party’s property,” which “flouts the clear text of the Fourth Amendment” and “cannot be defended under either a property-based interpretation of that Amendment or our decisions applying the reasonable-expectations-of-privacy test adopted in Katz.”¹³⁹

4. Justice Gorsuch’s Dissent

Some commentators regard Justice Gorsuch’s dissent as the most interesting and possibly the most significant opinion in the case.¹⁴⁰ Highly critical of the third-party doctrine,¹⁴¹ Justice Gorsuch outlined three possible directions the Court could take in the future to address the problem posed by the Court’s precedents: (1) “ignore the problem, maintain Smith and Miller, and live with the consequences”; (2) “set Smith and Miller aside and try again using the Katz ‘reasonable expectation of privacy’ jurisprudence that produced them”; and (3) “look for answers elsewhere.”¹⁴²

Regarding the first option, Justice Gorsuch concluded that Smith and Miller were a “doubtful application of Katz that lets the government search almost whatever it wants whenever it wants.”¹⁴³ Similarly, he concluded that the second option “inevitably leads” to “two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition.”¹⁴⁴

In the remainder of his dissent, Justice Gorsuch argued for option three, stating that “[t]here is another way”—namely, the traditional pre-Katz approach, which asked simply “if a house, paper, or effect was yours under law.”¹⁴⁵ While Justice Gorsuch acknowledged that he did “not begin to claim all the answers today” and that “much work is needed to revitalize this area,” he did claim to “have a pretty good idea what the questions are,” including “what kind of legal interest is sufficient to make something yours?¹⁴⁶ And what source of law determines that?”¹⁴⁷ Justice Gorsuch observed that “[u]nder this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.”¹⁴⁸

Justice Gorsuch offered five thoughts to start the discussion: First, he argued that “the fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them.”¹⁴⁹ Second, he doubted “that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right.”¹⁵⁰ Third, he argued that “positive law may help provide detailed guidance on evolving technologies without resort to judicial intuition.”¹⁵¹ Fourth, he cited Ex parte Jackson and argued for the “existence of a constitutional floor below which Fourth Amendment rights may not descend,” observing that “while positive law may help establish a person’s Fourth Amendment interest there may be some circumstances where positive law cannot be used to defeat it.”¹⁵² Lastly, he suggested that “this constitutional floor may, in some instances, bar efforts to circumvent the Fourth Amendment’s protection through the use of subpoenas.”¹⁵³

Justice Gorsuch expressed concerns about the ramifications of the majority’s decision to “keep Smith and Miller on life support and supplement them with a new and multilayered inquiry that seems to be only Katz-squared,” which he worried would result in “more trouble than help.”¹⁵⁴ Professor Donohue echoes Justice Gorsuch’s concerns, arguing that even as the majority opinion “declared the warrantless search of CSLI unreasonable, it introduced myriad questions that will push the lower courts into uncharted territory.”¹⁵⁵ Justice Gorsuch concluded his dissent by calling for further development of the traditional Fourth Amendment approach in future cases, observing that Carpenteroffers a “cautionary example” of what happens when the traditional approach goes unexplored.¹⁵⁶

II. How Can Bailment Doctrine Help?

The focus of this Part is how the “ancient principle”¹⁵⁷ that a bailee is strictly liable for conversion for misdelivery of a bailment supports Justice Gorsuch’s first point—that just because “a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them.”¹⁵⁸

This Part first agrees with Professor Donohue’s suggestion that the rule of functional equivalence could help identify when digital records (such as CSLI) are modern-day “papers and effects” warranting Fourth Amendment protection. Second, assuming that CSLI should be treated in the same way as “papers and effects,” this Part explores how bailment doctrine—specifically liability for conversion for misdelivery by a bailee—supports Justice Gorsuch’s critique of the third-party doctrine.¹⁵⁹ This Part concludes by providing an example of how bailment principles could be applied to facts like those in Carpenter.¹⁶⁰

A. Digital Records as “Papers and Effects”

Before addressing Justice Gorsuch’s point about retaining an interest in information shared with a third party, it is necessary to determine whether digital records like CSLI are to be considered modern-day “papers and effects.” Justice Gorsuch’s dissent asks the question “what kind of legal interest is sufficient to make something yours?” and suggests one possible answer is “the common law . . . extended by analogy to modern times.”¹⁶¹

Similarly, Professor Donohue suggests that to determine ownership of digital records, the Court could adopt a “but for analysis” by looking at “whether the material would exist but for the right-holder’s actions.”¹⁶² Donohue argues that with CSLI, it is up to the person who “buys the phone, charges it, turns it on, and decides when and where to carry it” to determine where records of the person’s phone use—including location information—are shared.¹⁶³ Donohue also argues for a “functional equivalence” approach to papers and effects, citing Professor Paul Ohm’s syllogism defining “technological equivalence”:

The Court in the past has held that information in a particular, traditional privacy context is protected by the Fourth Amendment. A technology produces information that is a modern-day equivalent to the information produced in the traditional context of step one. The information in the modern context is also protected by the Fourth Amendment.¹⁶⁴

Donohue argues that the Court can apply the same rule of functional equivalence to papers as it has in other contexts. Because an individual can have an “ownership interest” in digital records, Donohue suggests that it is up to that individual “to determine with whom the information generated by them is shared,” and thus “that person holds the original right.”¹⁶⁵

Justice Gorsuch offered a similar observation regarding CSLI: because customers have certain rights regarding their data, and carriers are forbidden to take certain actions, then “[p]lainly, customers have substantial legal interests in this information, including at least some right to include, exclude, and control its use.”¹⁶⁶ Justice Gorsuch suggested that “[t]hose interests might even rise to the level of a property right.”¹⁶⁷

B. How Principles of Bailment Law Relate to the Fourth Amendment

Assuming Professor Donohue and Justice Gorsuch are correct that digital records such as CSLI should be treated the same way as “papers and effects,” the “ancient principles”¹⁶⁸ of bailment law shed light on what happens when those records are shared with a third party. Specifically, the rule that a bailee is strictly liable for conversion for misdelivery of a bailment supports Justice Gorsuch’s proposition that just because “a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them.”¹⁶⁹ Application of the bailment rule regarding conversion for misdelivery undercuts the very premise of the third-party doctrine—contradicting the holding from Smith that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”¹⁷⁰

1. Bailment Doctrine Generally

In essence, a bailment is a “delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose.”¹⁷¹ Bailments can be constructive, sometimes called “implied-in-law bailments,” which can “occur even in the absence of the voluntary delivery and acceptance of the property that is usually necessary to create a bailment relationship.”¹⁷² Furthermore, general rules of liability govern the bailor-bailee relationship, even in the absence of any special contract.¹⁷³ With these general principles established, the rule regarding misdelivery is examined below.

2. Strict Liability for Conversion for a Bailee’s Misdelivery

The vast majority of jurisdictions follow the general rule that any delivery of property by a bailee to someone not authorized to receive it constitutes conversion, for which the bailee is strictly liable.¹⁷⁴ This holds true even if the bailee acts innocently or by mistake and regardless of the nature of the bailment.¹⁷⁵ The theory behind this general rule is that a bailee’s unauthorized transfer of the bailment is “an ‘exercise of ownership, dominion and control’ inconsistent with the bailor’s rights, and thus constitutes a conversion.”¹⁷⁶ Thus “misdelivery” simply means any delivery to a person not authorized by the bailor to receive the bailment.¹⁷⁷

This rule of bailment is consistent with existing Supreme Court case law. For example, as Justice Gorsuch pointed out in Carpenter, in Ex parte Jackson, the “Court held that sealed letters placed in the mail are ‘as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles.’”¹⁷⁸ According to Justice Gorsuch, it did not matter that the letters were “bailed” to the government as a third party—“[t]he sender enjoyed the same Fourth Amendment protection as he does ‘when papers are subjected to search in one’s own household.’”¹⁷⁹

C. Applying Bailment Law to Facts Like Those in Carpenter

Justice Gorsuch concluded his dissent by criticizing litigants, including Mr. Carpenter, for not raising arguments based on property or common law, warning that “[t]hese omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence.”¹⁸⁰ Justice Gorsuch observed that cases like United States v. Jones in 2012 and Florida v. Jardines¹⁸¹565 U.S. 1104 (2012). in 2013 should have put litigants on notice that “arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not.”¹⁸² How should a litigant in a similar case present an argument based on the type of traditional, property-based framework that Justice Gorsuch suggests?

The first step could be to argue that the digital record at issue is the modern-day equivalent of a “paper or effect,” perhaps by adopting Professor Donohue’s “but for” test and arguing that the record was created solely as a result of the person’s actions.¹⁸³ In the case of CSLI, as already noted, the data is only gathered by the phone company as a result of actions the litigant took—whether through calls, texts, or data connections.¹⁸⁴ Given the vast amount of information that metadata collection can reveal, a litigant could also argue for the application of “functional equivalence” to the digital records, reasoning that the metadata collection revealed information that would have been contained in the person’s “house, papers, or effects” during the Founding era.¹⁸⁵

After establishing that the digital record in question is a modern-day “paper or effect,” the second step is to argue that bailment principles so undercut the underlying premise of the third-party doctrine that the third-party doctrine should be formally abolished.¹⁸⁶ Because any unauthorized transfer of the bailment (here, the digital record) to a third party would render the record holder strictly liable for conversion under a bailment analysis, a litigant could argue that he did not give up a property right in the record just because the company now holds the information as a bailee. Were a court to agree with this type of argument, the government must then obtain a warrant before acquiring digital records, such as CSLI, as the records would constitute someone’s “papers or effects.”

Conclusion

If a digital record such as CSLI—that would not have been produced but for a person’s actions—is considered to be the modern-day equivalent of that person’s “papers or effects,” bailment law could be applied to indicate that any unauthorized disclosure of that record to a third party (i.e., law enforcement) is a conversion for which the record-holding company is strictly liable. Thus, under a traditional property-based framework, which simply “asked if a house, paper, or effect was yours under law,”¹⁸⁷ Fourth Amendment protections would be triggered and the government must get a warrant to obtain the record. Alternatively, under a Katz analysis, just because a person voluntarily submitted information in a digital record to a third party does not mean that the person has yielded their “reasonable expectation of privacy” in the record. Viewed under a bailment lens, an expectation exists that a bailee will not deliver a digital record—a modern-day “paper or effect”—to an unauthorized party. And the fact that a bailee would be held strictly liable for such a misdelivery indicates that society views the expectation as reasonable. Under either analysis, the rule that a bailee is liable for conversion for misdelivery could help end the third-party doctrine exception and strengthen Fourth Amendment protections of digital records.

Appendix: Support for the General Rule Regarding Conversion for Misdelivery of a Bailment

The cases in the table below represent most states’ general support for the rule that a bailee is strictly liable for conversion for misdelivery of a bailment. The cases listed range from 1790 to as recent as 2004, illustrating the long history of the rule.

Jurisdiction	Case Citation
Alabama	S/M Indus., Inc. v. Hapag-Lloyd A.G., 586 So. 2d 876 (Ala. 1991)
Alaska	Thompson v. Anderson, 824 P.2d 712, 715 (Alaska 1992)
Arizona	Lerner v. Brettschneider, 598 P.2d 515, 517 (Az. Ct. App. 1979)
Arkansas	Little Rock, Miss. River & Tex. Ry. Co. v. Glidewell, 39 Ark. 487, 490 (1882)
California	Byer v. Canadian Bank of Com., 65 P.2d 67, 68 (Cal. 1937)
Colorado	Dean Witter Reynolds Inc. v. Variable Annuity Life Ins. Co., 373 F.3d 1100, 1106 (10th Cir. 2004)
Connecticut	Griswold v. Judd, 1 Root 221, 221 (Conn. Super. Ct. 1790)
District of Columbia	Fotos v Firemen’s Ins. Co., 533 A.2d 1264 (D.C. App. 1987)
Florida	Star Fruit Co. v. Eagle Lake Growers, 33 So. 2d 858, 860 (Fla. 1948)
Georgia	Darling v. Purdom, 81 S.E. 800, 801 (Ga. 1914)
Idaho	Quinto v. Millwood Forest Prods., Inc., 938 P.2d 189, 192 (Idaho Ct. App. 1997)
Illinois	Dolphin v. Davis, 183 Ill. App. 118, 120 (1913)
Indiana	Inland Metals Ref. Co. v. Ceres Marine Terminals, Inc., 557 F. Supp. 344, 348 (N.D. Ill. 1983) (applying Indiana law); Sullivan & O’Brien v. Kennedy, 25 N.E.2d 267, 268 (Ind. App. 1940)
Kansas	Lipman v. Petersen, 575 P.2d 19 (Kan. 1978)
Kentucky	Kierce’s Adm’r v. Farmers’ Bank, 191 S.W. 644, 647 (Ky. 1917)
Massachusetts	Hall v. Bos. & Worcester R.R., 96 Mass. 439, 439 (Mass. 1867)
Michigan	Gen. Exch. Ins. Corp. v. Serv. Parking Grounds, 235 N.W. 898, 900 (Mich. 1931)
Minnesota	Hildegarde, Inc. v. Wright, 70 N.W.2d 257, 260 (Minn. 1955)
Mississippi	Edwards Hotel Co. v. Terry, 187 So. 518, 522 (Miss. 1939)
Missouri	Motors Ins. Corp. v. Union Mkt. Garage, 207 S.W.2d 836, 838 (Mo. App. 1948)
Nebraska	Zimmerman v. FirsTier Bank, N.A., 585 N.W.2d 445, 453 (Neb. 1998)
New Jersey	Reinfeld, Inc. v. Griswold & Bateman Warehouse Co., 458 A.2d 1341, 1344 (N.J. Super. Ct. Law. Div. 1983)
New Mexico	Veterinary Pharm., Inc. v. Pugliese, Civ. No. 03-00838 MV/LCS, 2005 WL 8163653, at *7 (D.N.M. Sept. 28, 2005)
New York	Fireman’s Fund Ins. Co. v. Wagner Fur, Inc., 760 F. Supp. 1101, 1106 (S.D.N.Y. 1991)
North Carolina	Esteel Co. v. Goodman, 348 S.E.2d 153, 157 (N.C. Ct. App. 1986)
Ohio	Aetna Cas. & Sur. Co. v. Higbee Co., 76 N.E.2d 404, 409 (Ohio Ct. App. 1947)
Oklahoma	Delong v. Mason, 83 P.2d 547, 549 (Okla. 1938)
Oregon	Atlas Hotel Supply Co. v. Baney, 543 P.2d 289, 292 (Or. 1975)
Pennsylvania	Shenk v. Phila. Steam Propeller Co., 60 Pa. 109, 116 (Pa. 1869)
Rhode Island	Lowney v. Knott, 120 A.2d 552, 554 (R.I. 1956)
South Carolina	Marlow v. Conway Iron Works, 125 S.E. 569, 571 (S.C. 1924)
South Dakota	Rensch v. Riddle’s Diamonds of Rapid City, Inc., 393 N.W.2d 269, 272 (S.D. 1986)
Tennessee	Dispeker v. New S. Hotel Co., 373 S.W.2d 904, 910 (Tenn. 1963)
Texas	Cent. Meat Mkt. v. Longwell’s Transfer, 62 S.W.2d 87, 89 (Tex. Comm’n App. 1933)
Utah	Christensen v. Pugh, 36 P.2d 100, 103 (Utah 1934)
Vermont	Winslow, Ward & Co. v. Vermont & M.R. Co., 42 Vt. 700, 704 (Vt. 1870)
Virginia	Ry. Exp. Agency v. Kessler, 52 S.E.2d 102, 103 (Va. 1949)
West Virginia	Dudley v. Chicago, M. & St. P. Ry. Co., 52 S.E. 718, 719 (W. Va. 1906)
Wisconsin	Rowlands v. Elec. Constr. Co., 182 N.W. 736, 738 (Wis. 1921)

Category: Print Issues

Bailment Law as Part of a Property-Based Fourth Amendment Framework

Share this article