Amy Coney Barrett and Privacy

Supreme Court Nominee Amy Coney Barrett

(Demetrius Freeman/The Washington Post via AP, Pool)

Background

On September 26, 2020, President Trump nominated Judge Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg on the U.S. Supreme Court. Judge Barrett has served on the U.S. Court of Appeals for the Seventh Circuit since her confirmation on October 31, 2017. Prior to her appointment to the bench, she clerked, worked in private practice, and taught at the George Washington University Law School and at Notre Dame Law School.

Judge Barrett was born and raised in New Orleans, Louisiana. She graduated from Rhodes College in 1994, where she was inducted into Phi Beta Kappa, and then attended Notre Dame Law School on a full-tuition scholarship, where she graduated first in her class in 1997.

From 1997-98, Barrett clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit, and from 1998-99 he clerked for U.S. Supreme Court Justice Antonin Scalia. After completing her clerkships, Judge Coney-Barrett joined the D.C.-based boutique law firm of Miller, Cassidy, Larroca & Lewin, which later merged with Baker Botts. While at Baker Botts, Coney-Barrett worked on the team that litigated Bush v. Gore. She later transitioned to academia, and taught at Notre Dame Law School until her appointment to the bench.

On May 8, 2017, President Trump nominated Judge Barrett to the U.S. Court of Appeals for the Seventh Circuit. The Senate Judiciary Committee considered her nomination on September 6, 2017, and was questioned by Senators on her prior writings on issues such as the death penalty and her views on Roe v. Wade. The Senate Judiciary Committee voted 11-9 on party lines to recommend Barrett and report her nomination to the full Senate. She was confirmed by a vote of 55-43 on October 31, 2017.

The Nominee's Positions

If appointed to the Supreme Court, Judge Barrett will wield considerable influence over of wide range of privacy, First Amendment, open government, and consumer protection issues. Judge Barrett's limited judicial record does not provide an extensive window into her views on many of these issues. But she has written or joined several opinions in cases that concern Fourth Amendment rights, First Amendment rights, the privacy rights of consumers, and the issue of Article III standing.

The Fourth Amendment

In her time on the Seventh Circuit, Judge Barrett has written or joined only a small number of Fourth Amendment decisions. Those rulings reveal a mixed record. Although Judge Barrett has sometimes shown a willingness to exclude evidence obtained in violation of the Fourth Amendment, she has also characterized the exclusionary rule as “strictly limited” and found no fault with a warrantless search of a defendant’s cell phone at the border.

In United States v. Terry, Judge Barrett ruled that it is not “reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect’s residence.” Judge Barrett wrote that “[t]he officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property.” Because police had neither consent nor a warrant to search the defendant’s home, Judge Barrett held that the search violated the Fourth Amendment and that exclusion of the resulting evidence was warranted.

In United States v. Watson, Judge Barrett ruled that an anonymous 911 tip that “boys” were “playing with guns” in a nearby car was an insufficient under the Fourth Amendment to stop and search a matching car. “The anonymous tip did not justify an immediate stop because the caller’s report was not sufficiently reliable.” Judge Barrett wrote. “The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.”

However, in United States v. Kienast, Judge Barrett ruled that a criminal defendant was not entitled to the exclusion of digital evidence obtained on the basis of an extra-jurisdictional warrant. Even if the underlying warrant was impermissibly broad, Judge Barrett reasoned, “the officers could have reasonably relied on the magistrate judge's conclusion that this warrant was [lawful].” Judge Barrett wrote that the Fourth Amendment exclusionary rule “is not a personal constitutional right, nor is it intended to remedy the injury of having one's rights violated. Instead, it is a judge-made rule meant to deter future Fourth Amendment violations. And its application has been strictly limited by the Supreme Court.”

And in United States v. Wanjiku, Judge Barrett joined a decision concerning a warrantless search of a criminal defendant’s cell phone at the border. The three-judge panel ruled that the lower court had correctly declined to exclude evidence obtained from the traveler’s phone upon his arrival in the U.S. The panel acknowledged that the Supreme Court had “granted heightened protection to cell phone data” in Riley v. California (concerning the search of a cell phone incident to arrest) and Carpenter v. United States (concerning law enforcement access to cell phone location data). However, the panel concluded that “[a]t the time that they conducted these searches,” border officials “reasonably relied on Supreme Court precedent that required no suspicion for non-destructive border searches of property, and nothing more than reasonable suspicion for highly intrusive border searches of persons.”

During her Supreme Court confirmation hearing, Judge Barrett was asked what the Fourth Amendment “ha[d] . . . to say about cell phones.” She responded:

The Constitution—one reason why it's the longest-lasting written constitution in the world—is because it's written at a level of generality that's specific enough to protect rights, but general enough to be lasting. So that when you're talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it—as the court did in Carpenter v. United States—to cell phones. So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn't catalogue the instances in which an unreasonable search or seizure could take place. So you take that principle, and then you apply it to modern technology, like cell phones, or what if technological advances enable someone with Superman x-ray vision to simply see in your house, so there's no need to knock on the door and go in? Well I think that could still be analyzed under the Fourth Amendment.

The Supreme Court has decided many important cases concerning privacy and new technologies. Recent decisions include Carpenter v. United States, Riley v. California, and United States v. Jones (concerning the attachment of a GPS tracking device to a vehicle). Several justices have spoken to the institutional roles that Congress and the Courts play in addressing these challenges to basic freedoms. Justice Kagan emphasized in a public speech that privacy "will be one of the most important issues before the Court in the decades to come." Justice Alito, in his concurring opinion in Jones, highlighted the important role that Congress plays in regulating "that complex subject" of wiretapping, noting that "concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions." And retired Justice O'Connor wrote in a widely cited concurring opinion:

In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.

Law enforcement today is presented with opportunities to use "stingray" devicescollect and test DNA samples for personal characteristics, mine social media platforms for information, access camera and recording devices remotely, and purchase vast quantities of personal data from commercial brokers. The public should feel confident that Judge Barrett understands the role that these technologies and law enforcement techniques play in individual lives and respects the need to strictly limit their use.

Given the rapid pace with which law enforcement technologies are developing, it is critical for the courts, as well as Congress, to safeguard fundamental rights. It is therefore important to ascertain Judge Barrett’s views on the role of the Courts and of Congress in addressing the challenges that new technology presents.

Consumer Privacy Rights

If Judge Barrett is confirmed to the Court before the end of November, she will hear Facebook v. Duguid, a case that concerns the scope of the federal robocall ban. Judge Barrett authored the opinion in Gadelhak v. AT&T Services, in which the Seventh Circuit considered the same question—and Judge Barrett decided against consumers.

At issue is the interpretation of the provision that defines “automatic telephone dialing system,” also known as an “autodialer”:

The term `automatic telephone dialing system' means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.

Judge Barrett recognized that the grammatical structure of the provision was ambiguous. However, Judge Barrett determined that the “most natural” interpretation “based on sentence structure and grammar” required that “using a random or sequential number generator” modify both “store” and “produce.” As a result, her interpretation allows companies to use the most prevalent autodialing system—equipment that automatically dials numbers from a database—to robocall individuals without penalty.

Judge Barrett rejected the definition that would cover all autodialing equipment because, among other things, the interpretation would create liability for cell phone users. Judge Barrett wrote that such a broad interpretation “would be an outlier in the statutory scheme,” but did not actually examine the structure of the statute, which would have assured her that no such liability would necessarily result from a broad autodialer restriction.

Article III Standing

Article III of the Constitution grants the federal courts judicial power over "cases" and "controversies." Over time, the Supreme Court has developed the doctrine of standing to limit federal court jurisdiction to "actual" cases or controversies. The Court’s Article III Standing doctrine requires that a plaintiff show they have suffered an "injury-in-fact"—that is, an "invasion of a legally protected interest" which is (1) "concrete and particularized" and (2) "actual or imminent, not conjectural or hypothetical."

The purpose of the Standing Doctrine, as explained by Justice Scalia in Lujan v. Defenders of Wildlife, is to protect “the Constitution’s central mechanism of separation of powers” by ensuring that the judicial power under Article III is limited and does not impede on the executive (Article II) and legislative (Article I) powers. Traditionally, Standing cases concerned the limits of Article III court jurisdiction over disputes individuals (or groups) and agencies or entities within the executive branch. In particular, Justice Scalia ruled in Lujan that “[w]hen the suit is one challenging the legality of government action or inaction, the [standard] . . . depends on whether the plaintiff is himself an object of the action (or forgone action) at issue.”

Judge Barrett’s opinion in Protect Our Parks, Inc v. Chicago Park District is a straightforward application of Lujan that is nonetheless notable for the clear and direct way that she distinguishes between standing to allege the claims at issue and the underlying merits of those claims. The plaintiffs (an advocacy group and several individuals) challenged Chicago’s approval of plans to build the Obama Presidential Center in Chicago’s Jackson Park on various state and federal grounds including violation of Illinois’ public trust doctrine, ultra vires action, impermissible Fifth Amendment takings, and violation of procedural due process under the Fourteenth Amendment. Judge Barrett (joined by two colleagues) ruled that the plaintiffs’ had not established individualized injury to assert their state law public trust and ultra vires claims in federal court (though they could still pursue them in state court) because they amount to a generalized grievance shared (in theory) by all Illinois residents. Though Judge Barrett did discuss at length the potential for “municipal taxpayer standing” as a basis for jurisdiction where a local taxpayer identifies a specific alleged illegal action and shows that city dollars were spent on that activity (she found that the plaintiffs did not do so in this case). But Judge Barrett did find that the plaintiffs had alleged a cognizable injury to assert their federal constitutional claims—namely, the loss of their property right (use and enjoyment) in the “beneficial interest in a public park.” Judge Barrett made clear that the alleged property right was “highly unusual,” but that the existence or nonexistence of that right was a merits issue. Many courts applying Lujan have conflated the two, as Judge Barrett explained, and it is “not unusual for the distinction between standing and the merits to cause conceptual trouble when a plaintiff alleges the deprivation of a dubious property or liberty interest.” She went on to dismiss the plaintiffs’ federal claims on the merits.

Most cases applying Lujan and the Article III Standing Doctrine have concerned challenges to federal or state government actions. But, in recent years, defendants in civil lawsuits under state and federal privacy and consumer protection statutes have presented a warped version of the standing doctrine in an effort to dismiss claims they allege don’t involve any “actual damage” to plaintiffs as a consequence of their legal injuries. That pattern has continued since the Supreme Court's recent standing decision in Spokeo, Inc. v. Robins, which several lower courts have misread as endorsing a consequential harm theory.

This corruption of standing doctrine is deeply concerning, as it prevents plaintiffs from vindicating rights created by Congress, state legislatures, and the common law. These decisions especially implicate the Acts of Congress that seek to protect Americans from the growing problems of data breach, identity theft, and financial fraud. Also, when a company violates consumers' legal rights by failing to prevent a data breach of their personal information, it is often impossible for those consumers to know whether or how their data was misused by a third party. Demanding that these consumers allege some additional harm—beyond a violation of their rights under a duly enacted law—to invoke federal court jurisdiction thus bars them from seeking relief, even though they have suffered an injury.

Judge Barrett has authored three opinions analyzing standing in civil suits under privacy and consumer protection laws.

In the first case, Casillas v. Madison Avenue Associates, Inc., Judge Barrett held that a plaintiff did not have standing to challenge a creditor’s actions under the Fair Debt Collection Practices Act where the alleged injury was a failure to communicate that any notice or request filed by the debtors under the FDCPA must be in writing. Judge Barrett (joined by two colleagues) held the plaintiffs had not alleged that the creditor’s actions “harmed or posed any real risk of harm to her interests under the [FDCPA].” Specifically, the plaintiff had not alleged any attempt or intention to file a notice or request or otherwise exercise her rights under the FDCPA. Judge Barrett contrasted the outcome with an earlier decision by the Seventh Circuit under the Fair Credit Reporting Act, Robertson v. Allied Solutions, in which the court held that a plaintiff had standing to sue their employer for failure to provide a copy of a background check before revoking an offer of employment.

In the second case, Carello v. Aurora Policemen Credit Union, Judge Barrett (joined by two colleagues) held that an individual suing a credit union for their website allegedly failing to comply with the Americans with Disabilities Act did not have standing as a “tester” because he “is not eligible for, nor has he expressed any interest in, membership in the Credit Union.”

In the most recent case, Gadelhak v. AT&T Services, Inc., Judge Barrett (joined by two colleagues) held that plaintiffs suing a company for violating the Telephone Consumer Protection Act did allege a concrete injury-in-fact and had standing under Article III. She analyzed the plaintiffs’ standing claim under the standard laid out by the Supreme Court in Spokeo v. Robbins and found that the right to be free from unwanted calls under the TCPA was rooted in the “long recognized” common law right to sue “defendants who invaded the private solitude of another by committing the tort of ‘intrusion upon seclusion.’”

As Judge Barrett explained during the second day of her confirmation hearings, “a plaintiff lacks a concrete injury if the harm isn’t . . . palpable . . . it can’t just be a procedural injury or something that didn’t actually have real consequence or real effect on the litigant.” She explained her view that the difficult question in standing cases is “deciding when an injury is concrete, and courts can hear it, or when an injury is more abstract and designed to elicit an advisory opinion from the court.”

The Nominee's Hearing

The following excerpts are from the Senate Judiciary Committee hearing on Judge Barrett’s nomination, held October 12-14. Full video and rough transcripts can be found at:

The Nominee's Writings

Judge Barrett has written several scholarly works, but none of those directly concern electronic privacy issues: (source)

The Nomination Process

Reports of Other Interest Groups

Commentary

  • Linda Greenhouse, Questions for Amy Coney Barrett, N.Y. Times (Oct. 8, 2020)
  • Michael W. McConnell, Amy Coney Barrett wouldn’t transform the court more than any other justice, Wash. Post (Sept. 29, 2020)
  • NPR On Point, Amy Coney Barrett And The Possible Future Of The Supreme Court, (Sept. 28, 2020)
  • Associated Press, A look at Judge Amy Coney Barrett’s notable opinions, votes (Sept. 27, 2020)
  • Michael Kranish, Robert Barnes, Shawn Boburg and Ann E. Marimow, Amy Coney Barrett, a disciple of Justice Scalia, is poised to push the Supreme Court further right, Wash. Post (Sept, 26, 2020)
  • Noah Feldman, Amy Coney Barrett Deserves to Be on the Supreme Court, Bloomberg (Sept. 26, 2020)
  • Wall Street Journal, Amy Coney Barrett: Views, Opinions and Experience (Sept. 26, 2020)
  • Ruth Marcus, The bombshell consequences of Amy Coney Barrett, Wash. Post (Sept. 26, 2020)
  • Elizabeth Dias and Adam Liptak, To Conservatives, Barrett Has ‘Perfect Combination’ of Attributes for Supreme Court, N.Y. Times (Sept. 20, 2020)
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