Tonight I have two updates for you, on cases I previously discussed on this webinar.
The first concerns the constitutionality of the Consumer Financial Protection Bureau – the CFPB. A federal judge in New York has found that the CFPB “is unconstitutionally structured because it is an independent agency that exercises substantial executive power and is headed by a single Director.” An independent agency with a single director is something we have not seen before and the judge ruled this violates separation of powers [p. 103]
I had previously discussed a separate CFPB case in federal court in the District of Columbia. The D.C. Circuit Court of appeals upheld the constitutionality of the CFPB in January 2018. A third case is in the Fifth Circuit Court of Appeals. In all likelihood, this issue is headed to the Supreme Court for final resolution.
The other case I’ll discuss tonight is Carpenter v. United States, which involves the Fourth Amendment. The Supreme Court just ruled that police must have probable cause and get a warrant before they can obtain cell site location data from a phone company. Writing for the majority, Chief Justice Roberts stated that people have a legitimate expectation of privacy in their location information because it 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.’”
Four Justices wrote dissenting opinions. Of special interest is the one by Justice Gorsuch, champion of the property rights theory of the Fourth Amendment. He criticized the long-standing expectation of privacy test as an unreliable guide that leads to unpredictable results. Cell phone records are property, in his view. He compared cell phone location data to sealed letters put in the mail, property which arguably requires a warrant to search even when entrusted to a third party, the post office. Gorsuch and his property rights rationale failed to carry the day, however, so ‘legitimate expectation of privacy’ remains the primary theory of Fourth Amendment jurisprudence for now.