Sharon Bradford Franklin on Lawfare discusses the impact of Carpenter v. United States (2017):
Writing for the majority in Carpenter v. United States, Chief Justice John Roberts called the court’s momentous Fourth Amendment decision “a narrow one.” The specific holding—that a warrant is required for law enforcement to access historical cell site location information (CSLI)—may indeed be narrow, and the decision rightfully cautions that “the Court must tread carefully” when considering new technologies. Yet, despite its limited scope, the opinion provides a framework for recognizing that the digital trails Americans create through their daily lives are protected by the Fourth Amendment. The decades-old “third-party doctrine,” under which Fourth Amendment rights are extinguished whenever individuals share their information with third parties such as banks and telephone companies, has appropriately been confined to the pre-digital age scenarios in which it arose.
As others have already argued, the Carpenter decision does not provide a clear legal standard for when the Fourth Amendment applies to data shared with a third party, and it raises many questions about the future of Fourth Amendment doctrine. But the decision does offer a resounding declaration that Fourth Amendment analysis must take account of the “seismic shifts in digital technology” and the power of modern surveillance tools. In particular, the Carpenter decision should foreclose, once and for all, any claim that bulk surveillance of Americans—or bulk collection of their digital records—would be constitutional. Through the USA Freedom Act of 2015, Congress ended the government’s bulk telephone records program, known as the Section 215 program, and provided new authority for collection of call detail records using a “specific selection term.” With reauthorization of this act to be considered next year, Carpenter’s analysis should preclude any attempt to retreat from the narrowing of surveillance authorities achieved under the 2015 law.
And so the judiciary is not insensitive to the implications of digital media and how they differ from other collectors of your information. I think this is as important as does Franklin, although it’s taken the courts 30-40 years to figure it out. I recall, back in the early to mid 1980s, a course in college concerning computers and society, and one of the hypotheticals of the day was using computers to track your purchases, and making deductions from that – and the computer’s recommendation that cash be extinguished so that the tracking would be more comprehensive. Not so different from this, is it? Of course, you can’t rule on hypotheticals … can you?
