A Roundup of Commentary on the Supreme Court’s Carpenter v. United States Decision

by on June 25, 2018 · 0 comments

On Friday, the Supreme Court ruled on Carpenter v. United States, a case involving the cell-site location information. In the 5 to 4 decision, the Court declared that “The Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search.” What follows below is a roundup of reactions and comments to the decision. 

Ashkhen Kazaryan, Legal Fellow at TechFreedom, had this to say about the ruling:

This ruling recognizes the immensely sensitive nature of cell phone location data, and rightly requires a showing of probable cause before law enforcement can obtain location information from mobile carriers. Our country’s Founders would have expected no lesser safeguards to apply to non-stop surveillance. Indeed, the American Revolution was first instigated over surveillance that was far less invasive.

Ryan Radia at Competitive Enterprise Institute commended the decision:

Although the court’s opinion was narrowly crafted to address the particular facts in this case, its decision underscores the court’s willingness to apply rigorous scrutiny to governmental surveillance involving new technologies. In the United States, the Constitution protects people from unreasonable searches and seizures, and Fourth Amendment protection should apply to private information held on or collected through our personal devices.

Curt Levy, president of Committee for Justice, penned an op-ed in Fox News:

Rapid technological change inevitably outpaces the glacial evolution of the law and the Carpenter case is a perfect example. The location data in question was obtained under the Stored Communications Act (SCA), which did not require prosecutors to meet the “probable cause” standard of a warrant.

So Timothy Carpenter turned to the Constitution. But the Justice Department argued that the Fourth Amendment didn’t apply because of the Supreme Court’s Third-Party Doctrine. That doctrine holds that no search or seizure occurs when the government obtains data that the accused has voluntarily conveyed to a third party – in this case, one’s wireless provider.

The Third-Party Doctrine made some sense when it was invented 40 years ago. However, when applied to today’s modern technology, the doctrine results in a gaping hole in the Fourth Amendment…

The good news is that the Supreme Court took a big step towards repairing that hole Friday. In an opinion by Chief Justice John Roberts, the court acknowledged that Fourth Amendment doctrines must evolve to account for “seismic shifts in digital technology.”

Orin Kerr runs through nine questions you might have on the decision over at the Volokh Conspiracy:

(9) Does This Reasoning Apply Just For Physical Location Tracking, Or Does It Apply More Broadly?

That’s the big question. On one hand, the reasoning of the opinion is largely about tracking a person’s physical location. The opinion takes as a given that you have a reasonable expectation of privacy in the “whole” of your “physical movements.” The Court has never held that, so it’s sort of an unusual thing to just assume! But the Court seems to be getting it mostly from Justice Alito’s Jones concurrence, and the idea, as Alito wrote in Jones, that “society’s expectation has been that law enforcement agents and others would not— and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.” …

On the other hand, there’s lots of language in the opinion that cuts the other way. Although the Court “decides no more than the case before us,” it also recasts a lot of doctrine in ways that could be used to argue for lots of other changes. Its use of equilibrium-adjustment will open the door to lots of new arguments about other records that are also protected. For example, what is the scope of this reasonable expectation of privacy in the “whole” of physical movements? Why is there? The Jones concurrences were really light on that, and Carpenter doesn’t do much beyond citing them for it: What is this doctrine and where did it come from? (And what other reasonable expectations of privacy in things do people have that we didn’t know about, and what will violate them?)

Cato’s Ilya Shapiro and Julian Sanchez comment on the Supreme Court’s decision in this Cato Daily podcast.

Columbia Law Professor Eben Moglen of the Software Freedom Law Center also opined on the decision:

The decision in Carpenter v. United States is a groundbreaking change in the application of the Fourth Amendment in digital society. By stating that the pervasive geographic location data assembled by cellular providers is not insulated from the warrant requirement even though it is information collected by third parties, the Court has fundamentally changed the principles underlying the application of the Amendment before today. The Court has stated that its present decision is narrow and factual, but a flood of further cases will seek to widen the meaning of today’s opinion.

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