Fourth Amendment

In Chatrie, Neil Gorsuch Reiterates His Critique of 2 Dubious Fourth Amendment Doctrines

The justice argues that the "reasonable expectation of privacy" test and the third-party doctrine are indefensible in theory and unworkable in practice.

Jacob Sullum | 6.29.2026 3:05 PM

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On Monday in Chatrie v. United States, the Supreme Court held that government-ordered analysis of data collected via Google's Location History feature, which tracks the whereabouts of cellphone users, qualifies as a "search" within the meaning of the Fourth Amendment. Justice Neil Gorsuch concurred in that judgment, but he wrote separately to reiterate his longstanding critique of two dubious concepts that have figured prominently in the Court's Fourth Amendment reasoning for half a century: the "reasonable expectation of privacy" test and the third-party doctrine.

In the 1967 case Katz v. United States, the Supreme Court held that electronic surveillance of telephone conversations requires a search warrant. By attaching a monitoring device to a telephone booth used by a suspected bookie, the majority said, the FBI had "violated the privacy upon which [the target] justifiably relied while using the telephone booth." The surveillance "thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." In other words, Justice John Marshall Harlan II said in a concurring opinion, the Fourth Amendment applies when someone has an "expectation of privacy" that "society is prepared to recognize as 'reasonable.'"

Gorsuch's Chatrie opinion notes one problem with that test: "It has no basis in the Constitution's text or history." He adds that it has never been clear how courts should determine when an "expectation of privacy" is "reasonable."

Maybe Katz "poses an empirical question, tagging reasonable expectations of privacy to those privacy expectations 'people actually have,'" Gorsuch writes. "Or maybe the question is a normative one, asking what expectations reasonable people 'should…have.' In truth, nobody knows and, either way, this Court is the wrong body for the task. We aren't equipped to make empirical assessments about what most Americans think. Nor is it our job to enforce our own normative judgments, as opposed to those embodied in the Constitution and laws."

The Supreme Court compounded the uncertainty in the 1976 case United States v.........

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