Technical advances and their implications for civil liberties collided anew in the Supreme Court's 2018 Carpenter v. U.S. decision. In that case, the Court made clear that "individuals can retain Fourth Amendment rights in information they disclose to a third party." The Court specifically ruled that the government needed a warrant before collecting cell phone location data that revealed a suspect's location over a seven-day period. In today's Internet age, Carpenter has the potential to expand privacy protections over a wide and deep swath of sensitive digital information. Insofar as the decision's practical contours and boundaries are, unsurprisingly, vague, "scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward." Equally unsurprising, these guesses about Carpenter's meaning diverge.
In a recent paper, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, Matthew Tokson (Utah) subjects various predictions and claims about Carpenter's implications to data. In particular, the paper analyzes "all 857 federal and state judgments citing Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.” Among the paper's findings include that: "factors that drive lower court decisions clearly include the revealing nature of the data at issue, the amount of data collected, and the automatic nature of data disclosure, and clearly do not include the number of persons affected." An excerpted abstract follows.
"[The paper] identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the 'good faith exception' to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."
Comments