The long-anticipated collision between Fourth Amendment rights and technology has largely arrived. On the one hand, traditional legal doctrine implies that "information shared with a third party like a bank or telephone company was not protected by the Fourth Amendment." On the other hand, the volume of information now exposed to third parties has "exploded in the internet age, encompassing virtually every kind of digital data generated by internet and cell phone users." In 2018, the Court weighed in and its Carpenter decision was deemed "revolutionary" by holding, in part, that "individuals can retain Fourth Amendment rights in information they disclose to third parties." Specifically, the Court ruled that government agents had to "obtain a warrant before collecting cell phone location data that showed virtually everywhere a suspect had travelled over a seven-day period."
How lower courts understand and have operationalized the Carpenter decision is the focus of The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021, by Matthew Tokson (Utah). The paper examines all 857 federal and state court decisions that cite to Carpenter from the decision's 2018 publication through March 2021. Among the salient factors driving lower court outcomes 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] 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 explores 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 suggests alternative factors and paradigms that courts can adopt to more effectively address Fourth Amendment questions going forward. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive study to date of the jurisprudential impact of a Supreme Court case in the years following its publication."
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