Sat. Nov. 6, 2021 | By Matthew Tokson – lawfare |
The Supreme Court’s 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.
This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point. Carpenter raises the possibility that the Fourth Amendment may effectively protect sensitive digital data. But Carpenter is a notoriously vague opinion, and scholars have reached conflicting conclusions about its meaning and impact. What does Carpenter mean, and what will it mean in the future?
In a recent article forthcoming in the Harvard Law Review, I attempt to shed some light on Carpenter and its jurisprudential impact. I coded and analyzed all 857 federal and state judgments applying Carpenter through March 31, 2021. In doing so, I was able to identify the factors that drive modern Fourth Amendment search decisions and describe a nascent Carpenter test now emerging in the lower courts. I also examined overall compliance with Carpenter, finding that courts have largely embraced it, with almost no overt criticism and relatively little indirect noncompliance. And I encountered a shockingly high rate of cases resolved based on 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. These findings can help resolve some of the mysteries of Carpenter, illuminating both the present state of the law and the paths along which it will likely continue to develop…
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