New law review article: Fourth Amendment Reasonableness After Carpenter

This brief essay is great insight into arguing the next steps of Carpenter, reasonableness, property rights, and whether the reasonable expectation of privacy test will be changed. We recommend you read all you can about Carpenter because the right reasonableness cases will make more law, and we’d rather be the litigators than the spectators:

Alan Z. Rozenshtein, Fourth Amendment Reasonableness After Carpenter, 128 Yale L.J. Forum (forthcoming 2019):

Abstract and lead paragraph:

Carpenter v. United States has been recognized as a landmark case in Fourth Amendment law. Commentators have highlighted—and generally lauded—the opinion’s limiting of the third-party doctrine. But just as important as the decision’s effect on the scope of the Fourth Amendment— when the Fourth Amendment applies—is its impact on the amendment’s content. The Supreme Court did far more than find that government acquisition of cell-site location data is subject to the Fourth Amendment. It also held that any process short of a warrant—and thus any level of suspicion short of probable cause—would be inadequate, and on that basis held a law of Congress unconstitutional. This brief essay argues that Carpenter’s application of a strict warrant requirement was a mistake, and that the Court should have instead engaged more directly with the question of whether Congress’s surveillance policymaking was reasonable.

Last two paragraphs:

Civil libertarians might object that a reasonableness-focused approach will allow “too much” government surveillance and that we should stick with Carpenter’s broad-scope/high-requirement approach. Putting aside the issue of what evidence would be necessary to establish a particular level of government surveillance as excessive (rather than insufficient or just right), Carpenter’s rigid emphasis on the warrant requirement is likely unsustainable in the long term. As the history of the Fourth Amendment shows, criminal procedure must meet criminal investigations halfway.

If the Supreme Court is serious (as I hope it is) about rolling back the third-party doctrine—if, in other words, it means Carpenter to be the beginning of a Fourth Amendment revolution, not just a one-off case—it will, sooner or later, have to repudiate Carpenter’s suggestion that warrants are
required for all digital searches. In the meantime, a critical research agenda in Fourth Amendment scholarship must be to develop an account of what substitutes for warrants are reasonable in a digital age.

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