The Supreme Court dropped its opinion in the hotly-anticipated Carpenter case, holding in a 5-4 decision (or 5-3-1, if one sees Justice Gorsuch’s dissent as a quasi-concurring opinion) that a warrant is required for law enforcement to obtain historical cellphone data.

The Walrus and the Carpenter
Were walking close at hand;
They wept like anything to see
Such quantities of sand:
If this were only cleared away,’
They said, it would be grand!’

If you’re looking for scholarly discussion of the opinion, you would do better to read Orin Kerr’s thoughts, or perhaps Lior Strahilevitz and Matthew Tokson. Unlike the academics, and the justices, there was one thing I hoped would come out of this decision. It didn’t.

For a long time now, it’s been clear that the digital world doesn’t fit well within the paradigm of search and seizure in the physical world. Whether Katz’s “reasonable expectation of privacy” test was ever a good idea can be disputed, but at least it was a test. The “positive law” view of property rights makes for a viable test as well, but it leaves way too much on the table and, I suspect, will be even less availing in a digital world. Then there’s Orin’s “mosaic theory” and “equilibrium adjustment” theory.

That’s a lot of theories. But in the trenches, we don’t argue theories. We argue tests. Tell us what the test is and we’ll try to meet it, or circumvent it, or tunnel under it, but somehow find a way through it to prevail. We may pay lip service to the theory, but it’s the test that wins cases. Did we pass the test?

The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements. See, e.g., United States v. Jones, 565 U. S. 400 (five Justices concluding that privacy concerns would be raised by GPS tracking). The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties. See United States v. Miller, 425 U. S. 435 (no expectation of privacy in financial records held by a bank), and Smith, 442 U. S. 735 (no expectation of privacy in records of dialed telephone numbers conveyed to telephone company).

Unlike physical things, data almost invariably lives in the hands of third parties. We can keep our secret stash in our sock drawer, but much, if not most, of our world now exists on somebody else’s server.

And that list of technologies that could end up before the court is much longer because the government can monitor more than just our movements; it can track every purchase we make, every website we visit, every television show or movie we watch, every contact we email and more. Whether the government may do so without a warrant is an open question following the Carpenter decision.

No one believes that there are little elves in boiler rooms poring over every bit and byte, just in case they stumble onto something curious and criminal. It’s all just ones and zeroes in storage for no particularly good reason, until someone on the government teat decides that they would like to know everything about you and then, boom, a few keystrokes and it’s all theirs.

Congress hasn’t a clue how the digital world happens. The courts have been playing catch-up, about a decade behind the digital problems that need answers. Trial judges have varying degrees of grasp and try their best to rule by bad analogy because they’ve got nothing better to go on. And lawyers? We fashion arguments as best we can, knowing full well that we’re running as fast as we can, head down, straight into a brick wall of law. That brick wall is called the third-party doctrine.

The doctrine arose in an old 1979 case, Smith v. Maryland, in which the Supreme Court created rationalization to allow a then newfangled technology, the pen register, to be used without a warrant. It merely gave up the telephone numbers of incoming and outgoing calls, which told agents who was calling whom and allowed them to connect people who they might otherwise be unable to connect. It identified conspirators they didn’t know about, when Bad Dude 1 called Unknown Bad Dude. Title III wiretaps were still deeply frowned upon, as people in general, and the judges as well, were deeply suspicious of the extreme intrusiveness of eavesdropping.

Seems so very quaint today.

But telephones were different then. You were billed by the call, and were painfully aware that the phone company was keeping precise tabs on every call made, because that was how they made money and that was how they sucked money out of you. Unlike today, when calls are a commodity and nobody cares if you sit on the phone for 27 hours, two minute long distance calls were all most of us could afford. We scrutinized phone bills for any error, as that was a direct expense. We knew it. They knew it. That was life.

In order to absolve the government of its Fourth Amendment-challenged ways, the Third Party Doctrine was invented. If your information was placed into somebody else’s hands, then you had no reasonable expectation that it would be private. After all, if Josephine at the phone company knew about it, how could it possibly be private?

While the scholars question, argue, think really hard about theories, the one outcome that would change life in the trenches was the elimination of the Third Party Doctrine. The Carpenter decision made it fuzzy, recognizing that data in a digital world provides more information, more grains of sand, than anyone could have conceived at the time it was created.

What, then, is the explanation for our third party doctrine? The truth is, the Court has never offered a persuasive justification. The Court has said that by conveying information to a third party you “‘assum[e] the risk’” it will be revealed to the police and therefore lack a reasonable expectation of privacy in it. Smith, supra, at 744.

That rationale has little play in this context. Suppose I entrust a friend with a letter and he promises to keep it secret until he delivers it to an intended recipient. In what sense have I agreed to bear the risk that he will turn around, break his promise, and spill its contents to someone else? More confusing still, what have I done to “manifest my willingness to accept” the risk that the government will pry the document from my friend and read it without his consent?

This comes not from the majority opinion, but Justice Gorsuch’s dissent.

The time has come,’ the Walrus said,
To talk of many things:
Of shoes — and ships — and sealing-wax —
Of cabbages — and kings —
And why the sea is boiling hot —
And whether pigs have wings.’

Unfortunately, the majority didn’t see it that way, and so we’re left with a discussion of theories and a test, the Third Party Doctrine, that may or may not apply based on . . . who knows?