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How SCOTUS’ abortion decision threatens privacy and puts the LGBTQ community at risk
SCOTUS’ abortion decision signals the possibility of sweeping changes to privacy under the Fourth Amendment, threatening the LGBTQ…
Much has been made about the Supreme Court’s controversial decision in Dobbs v. Jackson Women’s Health to overturn federal abortion rights. Much has also been made about the flares thrown up by Justice Clarence Thomas’ concurring opinion in Dobbs in which he pointed to other landmark rulings that he said should also be reconsidered.
In that opinion, Thomas laid out a wish-list of cases that he said the court should rethink including Griswold v. Connecticut, which established the right to contraception; Lawrence v. Texas, which established the right to private, consenting sexual acts; and finally, Obergefell v. Hodges, which established the right for same-sex couples to marry.
But if you’re thinking Thomas delivered an exhaustive list of cases he’d like to see reconsidered, don’t be fooled.
In the past, those inclined could dismiss many of Thomas’ opinions as fringe, but now with the Court’s conservative majority and its apparent willingness to rewrite long-standing precedent, Thomas might get his way more often.
And if he does, big changes could be coming to those civil rights already mentioned, but also the way in which the Fourth Amendment is applied.
Two landmark cases on privacy
Just four years ago, the Supreme Court ruled that the government needs a warrant to collect cell phone tower data that could be used to track a user’s location.
The Court found that the Fourth Amendment’s protection from unreasonable searches and seizures included cell phone records that could be used to track a person’s whereabouts.
Everywhere you go your cell phone is constantly pinging and connecting to nearby cell towers. It’s a reality of modern life for the vast majority of Americans as they cart around smartphones in their pockets. These pings and connections leave behind digital breadcrumbs of where that phone (and most often a specific individual) has been.
In the case of Carpenter v. United States (2018), those digital breadcrumbs were collected by the FBI in 2011 without a warrant and used to piece together the location of Timothy Carpenter, a suspected armed robber, for more than 120 days.
The question before the Supreme Court in Carpenter was whether the collection of that data without a warrant violated the Fourth Amendment.
In the Court’s opinion, Chief Justice John Roberts made clear how broad the scope of cell phone location data could be and the pitfalls of allowing authorities to collect it without a warrant.
“Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts,” Roberts wrote. “As with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”
Roberts joined the liberal wing in a 5–4 decision that was largely based on an earlier Supreme Court ruling called Katz v. United States.
It seems straightforward today: When you pick up the phone and call someone, the only people involved should be you and the person you’ve dialed. The obvious exception is if law enforcement was conducting an investigation and had a warrant to “tap” or bug your phone.
But up until about 50 years ago, there was no need for law enforcement to get a warrant.
That changed following the arrest of Charles Katz in 1965 as part of an investigation into illegal gambling.
The FBI — without a warrant — had installed listening devices on a bank of payphone booths in Los Angeles where agents suspected Mr. Katz had been transmitting betting information. One day, Mr. Katz entered one of the booths and his conversation was recorded with a listening device placed outside the booth. That conversation was then later used against him in court.
The reason the FBI didn’t need a warrant at the time was because of the Supreme Court’s ruling in Olmstead v. United States in 1928, which said that wiretaps were not a violation of the Fourth Amendment’s protections against unreasonable searches and seizures.
The Court reasoned that since the language of the Amendment states that people have a right to be “secured in their persons, houses, papers, and effects” that meant the Amendment’s protections only applied to physical property, not conversations.
Katz v. United States, however, rewrote the rules.
Mr. Katz’s case would reach the Supreme Court in 1967 and rather than viewing the Fourth Amendment’s protections through the lens of property, the Court created a new standard for determining whether a search has taken place: Whether a person had a reasonable expectation of privacy.
For example, in Mr. Katz’s case, did he have a reasonable expectation that his conversation while inside a phone booth would be private? Or similarly, when you’re on the phone with someone, even though that call may be traveling down wires or reaching cell towers that are outside of your physical property, is there a reasonable expectation that your conversation is private?
The Court in Katz said yes.
The 7–1 ruling (with Justice Thurgood Marshall having recused himself) meant that a “search” under the Fourth Amendment could extend beyond violations of someone’s physical property and that the meaning of a search had to be weighed against whether a person had a reasonable expectation of privacy.
Today’s threat to Katz and Carpenter
Fast forward to 2018 when the Supreme Court decided Carpenter v. United States.
The Court reasoned that there exists a reasonable expectation of privacy when it comes to your cell phone location data, and the Court based that decision on the standard set by Katz.
In his book Presumed Guilty (2021), Constitutional scholar and Dean of U.C. Berkeley Law School Erwin Chemerinsky called the Court’s decision in Carpenter “one of the most significant in applying the Fourth Amendment to the technology of the twenty-first century.”
But just as people are now concerned about the fate of other civil rights following the Supreme Court’s decision in Dobbs, the privacy protections afforded by Katz and Carpenter are also threatened.
In Carpenter, Justice Thomas wrote a dissent in which he made clear his opposition not only to the decision in Carpenter but also to the logic behind Katz.
Thomas took issue with the “reasonable expectation of privacy” standard, writing that it has “no basis in the text or history of the Fourth Amendment.”
He wrote that the privacy test “misconstrues” what the Fourth Amendment means by being secured in “their persons, houses, papers, and effects.” Thomas wrote that by “connecting the right to be secure to these four specific objects, ‘[t]he text of the Fourth Amendment reflects its close connection to property.’”
Joining Thomas in dissent of Carpenter, were fellow originalists Samuel Alito and Neil Gorsuch. Gorsuch in his own opinion stressed the “original understanding” of the Fourth Amendment.
How Dobbs, Katz, and Carpenter Intersect
Of course, having an original view of the Fourth Amendment means having to set aside how life, policing, and technology have changed over the last 230 years and how those changes affect our rights, in favor of interpreting and applying the language of the Amendment as it was originally written in the late 1780s (when mankind was closer to Galileo inventing his thermometer than it was to Apple inventing the iPhone, for example.)
The ways in which personal data is now collected and in what volumes have absolutely no analogy in the analog world that existed when the Framers wrote the Constitution.
Organizations such as the FBI, National Security Agency, ATF — even local police departments — didn’t exist. Tech companies that have broad access to our personal data such as our location, searches, communications, photographs, and even our health vitals, likewise did not exist.
Should Thomas get his way and the Supreme Court change the application of the Fourth Amendment from a privacy test to a pre-Katz property standard, warrantless collection of intimate personal data or warrantless wiretaps could become not only a tool in law enforcement’s toolbox but perhaps an arrow in its quiver.
That’s because privacy concerns raised by returning the Fourth Amendment to its ‘original’ understanding take on added significance after the Supreme Court’s decision in Dobbs to overturn federal abortion rights.
It’s not clear whether states, where abortions are illegal, could bar or punish a woman from traveling to another state in order to get an abortion. Justice Kavanaugh said in his Dobbs opinion that states could not stop someone doing so: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Kavanaugh’s opinion, however, doesn’t hold any legal protection and whether states could outlaw traveling for an abortion was not the question before the Court in Dobbs. That means there is a possibility that the Court’s majority could see it differently if they took up a case on that issue.
But perhaps a more likely but equally concerning scenario is how warrantless location data could be used against people if other federal civil rights are also overturned by the Supreme Court.
As mentioned previously, in his Dobbs opinion Justice Thomas named several landmark Supreme Court cases he thinks should be reconsidered, including Lawrence v. Texas which barred a 1973 Texas law criminalizing sodomy.
Following the Dobbs decision, Texas Attorney General Ken Paxton already signaled that he would enforce the state’s dormant sodomy law if the Supreme Court were to overturn Lawrence.
Imagine then, how important the protections of Carpenter and Katz would be to protect the movements and associations of members of Texas’ LGBTQ community? Without those protections, warrantless collection of location data or wiretaps could be used to target or track same-sex couples in Texas.
As previously mentioned, Chief Justice Roberts said in the Carpenter decision that a person’s location data can reveal someone’s “familial, political, professional, religious, and sexual associations.”
What’s to stop Texas’ sodomy law, which predates cell phones, from being weaponized against the LGBTQ community with the aid of data obtained without a warrant that could reveal a person’s relationships, locations, and associations?
The role tech companies play
It’s worth mentioning that there is a possible backstop to these scenarios and that is with the tech companies themselves.
In the wake of the Supreme Court’s Dobbs decision, Google said it would scrub location data around abortion clinics. Actions like these could be critical in protecting people’s sensitive data if the courts no longer require a check on law enforcement’s use of it.
But while Google is a behemoth, it’s just one of many companies that collect highly personal data about us and are subject to requests for data from law enforcement. And for every example of a company standing up to government pressure to accommodate intrusion, there is another where companies have willfully handed over the keys.
The question is how a change in interpretation of the Fourth Amendment might alter the practices of tech companies.
If law enforcement no longer legally needed a warrant to gather location-based data, for example, will tech companies simply throw up their hands and turn over those data upon request? Or will they keep the bar high and ask for a warrant anyway? And if so, will they be willing to go to court over it?
Yes, these are hypotheticals, and a lot would need to happen for them to become reality, but there’s reason to consider them plausible.
And though they didn’t mention it by name, the Court’s current application of the Fourth Amendment should be considered among those threatened.
“The lone rationale for what the majority does today is that the right to elect an abortion is not ‘deeply rooted in history,’” the dissent reads. It continues that if historical precedent is the only standard, then “all rights that have no history stretching back to the mid-19th century are insecure.”
The Court has a different composition now than it did in 2018 when it ruled on Carpenter, so one big question is how the newer justices (Kavanaugh, Barrett, and Jackson) will view the Fourth Amendment.
While we know where they fall on the ideological spectrum and we can consider past their rulings, it’s impossible to say with certainty how these three might come down on a Fourth Amendment case. Looking to similar cases and rulings while they were on lower courts may reveal little about their true feelings since they would have been obligated to follow precedent from the Supreme Court.
I would rather let others speculate on where those justices might fall on a hypothetical challenge to Carpenter or Katz, but with the Supreme Court’s willingness to buck precedent on longstanding civil rights and the already open opposition from Thomas, Gorsuch, and Alito on how the Fourth Amendment is currently being applied, there’s reason to worry.
Mark Remillard is an award-winning journalist based in New York City. His work has appeared extensively on ABC News, Yahoo! News, and local news stations across the U.S. and Canada. More info: https://linktr.ee/markjremillard