Last week, the Supreme Court denied certiorari in Raynor v. Maryland, a case challenging the constitutionality of a conviction based on DNA evidence obtained without a warrant or the consent of the defendant. In denying certiorari, the Court let stand ruling of Maryland’s highest court, which ruled 4-3 that the taking of DNA evidence did not constitute a Fourth Amendment search, and therefore the lack of consent or warrant gave no basis for suppressing the DNA evidence or throwing out the conviction based on that evidence.

To my mind, there are clear parallels between the state’s ability to take DNA evidence without warrant and the state’s ability to take electronic data held by third parties without warrant.

This is the pivot of the essay. Why should we go so far to fetch this comparison?

Just as people produce huge amounts of data in all their electronic activity, people leave an incredible trail of genetic material everywhere they go: the average person sheds some 30,000 skin cells every hour, and DNA can also be read from stray hairs, sweat, saliva, fingernails, dandruff, and a huge variety of other sources. Also just like electronic data we generate on third-party servers, the genetic material we shed is invariably out of our control – whether it is on a sheet of tissue paper we consciously choose to throw away, a hangnail we unthinkingly toss aside, or, as in Raynor, sweat and skin cells unknowingly left behind when we rub our arms on a chair at the police station, it is unquestionably surrendered and left out for the taking. So my question is: how could 42.8% of the Maryland Court of Appeals find that taking DNA evidence without a warrant is a violation of the Fourth Amendment? And, further, if those three judges can so rule, is there anything in their dissent that might succor extending Fourth Amendment protection to electronic data?

We have now made the leap from asking whether the police can search without warrant material left behind in the police station by someone not in custody at the time, to whether there is a right to prevent the state from seeking previously-lawful court orders to recover materials deposited with third parties in the business of receiving and storing for others and on their own accounts. There's no real similarity between situations, and the other thing holding these two situations in the same frame is that their technical context is novel.

Judge Adkins’ dissent in Raynor relies heavily on the fact that the defendant was not in any way under arrest at the time the DNA sample was taken, finding that this substantially reduced the compelling state interest to be weighed against the defendant’s privacy interest. Rather, Adkins argues, “the privacy interest Raynor sought to protect, his DNA, is immensely personal and private, and deserves the staunchest protection under the Fourth Amendment.” The argument here is two-pronged. First, Adkins calls attention to DNA’s “potential to reveal enormous amounts of private information about a person,” including their “genetic traits, behavioral tendencies, propensity to suffer disease or defects, other private medical information, and possibly more.” This is what distinguishes DNA from the majority’s chosen analogy – the fingerprint, purported to give information only as to identity – and makes DNA collection more akin to urine or blood samples, in which previous courts found a privacy interest on the basis that analysis of those samples could reveal information about whether a person suffered from epilepsy, diabetes, or other medical conditions.

Second, Adkins goes to lengths to establish the principle that physical intrusion is not necessary in order to implicate the Fourth Amendment. Rather, Adkins relies on the Katz v. United States rule that privacy extends to whatever a person “seeks to preserve as private, even in an area accessible to the public” and takes the traditional Katz inquiry at face: whether there subject of the search had an actual subjective expectation of privacy, and whether that society is prepared to recognize that expectation as “reasonable.” The dissent answers both inquiries in the affirmative and votes that the evidence be suppressed. In the most quoted passage of his opinion, Adkins describes the consequences of the majority’s ruling: “The Majority’s approval of such police procedure means, in essence, that a person desiring to keep her DNA profile private, must conduct her public affairs in a hermetically-sealed hazmat suit.”

I think this view of the Fourth Amendment very obviously gives comfort to concerns about police access to electronic data. Like our genes, our digital history can be used to reveal a host of information about us that we have legitimate interests in protecting: medical information, financial status, political ideologies, sexual preferences and behavior, physical movements, et cetera. As with DNA, this data is produced without regard to our will: just as shedding skin cells is an inevitable consequence of being a living person, leaving a rich data trail is an inevitable consequence of being online (itself becoming an inevitable consequence of living in 21st-Century America). A rule saying that our electronic data profiles, even those consisting solely of metadata, are not protected by Fourth Amendment guarantees is a rule saying that citizens must wear the digital equivalent of a hazmat suit in order to have even the slightest chance of meaningful privacy.

The resonance between these areas was not lost on the Maryland court’s minority, which cited a pair of digital cases – United States v. Davis, a 2014 Eleventh Circuit case finding a Fourth Amendment violation in the government’s warrantless collection of electronic location information from the defendant’s wireless service provider, and Riley v. California, the 2014 Supreme Court case ruling that data on a cell phone may not be searched incident to arrest – to support its finding of privacy interests in information. In a jurisprudential context in which we have recognized that the Fourth Amendment’s guarantee of a right of citizens to be “secure in their persons, houses, papers, and effects” includes a protection of their private lives against unreasonable nosing, it appears that extending that protection to information inadvertently left behind can be a mainstream position, with no torturing or novel readings of the Constitution required.

How we are to conclude that on the basis of a case that went the other way and in which cert was denied I am not sure. That's pretty much saying that we have learned A from the rejection of A by one court and silence from another. Perhaps that is not the strongest possible argument.

It seems to me that the question for the revision of this draft is whether the real point of the essay is the comparison of two situations, or the claim that "left behind" information should not be producible in response to a subpoena to the bailee or next possessor. The comparison of situations suffers from the dissimilarity of situations, as I have mentioned. The legal argument suffers from its complete reversal of everything we've ever known about real goods in the hands of third parties, which are of course subject to search by court order addressed to the warehouseman, banker, etc. Which of the two sets of obstacles you set yourself to overcome seems to me important to establish: they are one way or another the primary challenge in the next draft.

-- TomLawrence - 06 Mar 2015