John Wrench (Institute for Justice) has posted Chatrie and the Roberts Court’s New Katz (Cato Supreme Court Review) on SSRN. Here is the abstract:
In Chatrie v. United States, the Supreme Court held that individuals have a reasonable expectation of privacy in their cellphone location data, and that police invade that expectation by accessing such information. This Article argues that Chatrie is at least as significant because it reflects a settlement around an account of Katz’s reasonable expectation of privacy inquiry that is subtly but profoundly different from how the test’s most ardent defenders and harshest critics have long understood it. On this account, the reasonable expectation of privacy inquiry is applied in light of certain Founding-era principles, while a subset of decisions—nearly all the Roberts Court’s own—illustrate that approach in practice. The consequence is that earlier Katz-based precedents extend to new contexts only insofar as their rationales are compatible with the same principles. Carpenter introduced this account in 2018 but left uncertain whether its reconceptualization was an anomaly or a signal of the Court’s general understanding going forward. Chatrie answers that question, and, in doing so, gives the reasonable expectation of privacy inquiry an orientation it has long been criticized for lacking. But it also presents two problems. The Court’s insistence that this is Katz as “faithfully applied … for some 60 years” obscures a substantial revision that dates only to Carpenter. More fundamentally, although the Court has reoriented the Katz inquiry toward Founding-era principles, the gap between those principles and their application to particular cases continues to be filled by heterogeneous, unranked, and nonexhaustive considerations. Following Chatrie, the open question is thus whether the new Katz’s principles can be given lasting and coherent effect while the old Katz’s eclecticism is still doing the work on the ground.
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