Forward: Justice Brandeis Was Right About Technology — 90 Years Before The Courts

Forward: Justice Brandeis Was Right About Technology — 90 Years Before The Courts by Joshua Z. Rokach:

Of the rulings that the Supreme Court handed down in its end-of-the-term rush, Carpenter v. United States (June 22, 2018) will prove to have the most far-reaching impact. The justices, by a 5-4 vote, held that the Constitution requires police to obtain a search warrant before gaining access to personal data that carriers collect from our cell phones. Police had used the information to place Carpenter at the scene of multiple robberies and to convict him of the crimes.

The media hailed the outcome as a major victory for privacy against Orwellian intrusion, but reports obscured an equally momentous implication. A few weeks after the 90th anniversary of Justice Louis D. Brandeis’ most prophetic dissent in Olmstead v. United States (1928), a case permitting wiretapping without a warrant, the Court has come around to his way of thinking. The Court began the process haltingly over 50 years ago, but only now have the justices embraced Justice Brandeis’ wisdom in applying the constitutional protection against unreasonable searches and seizures.

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