Lawfare: Carpenter and the End of Bulk Surveillance of Americans by Sharon Bradford Franklin:
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.