Just Security: Resolving Carpenter’s Third-Party Paradox (Part I – The Paradox)

Just Security: Resolving Carpenter’s Third-Party Paradox (Part I – The Paradox) by Michael Dreeben, Elizabeth N. Hadley, Conor S. O’Shea and Johanna Seale:

The Fourth Amendment revolution in Carpenter v. United States has produced a constitutional world that seems – as Aaron Burr’s character in the hit Broadway musical Hamilton described the Constitution – ‘full of contradictions.’ Carpenter is the latest in a line of Supreme Court cases that attempt to reframe search-and-seizure law to keep pace with changing digital realities. Near the start of the 21st century, the Court addressed thermal-imaging technology that could reveal a home’s interior without a physical entry, seeking to update the Fourth Amendment’s core protection of the home to meet that challenge. A decade later, it applied trespass concepts to restrict GPS tracking of a car on public streets. And more recently, in 2014, it found that a cell phone’s vast capacity to hold information took it outside conventional search-incident-to-arrest doctrine. In 2017, Carpenter continued this project by breaking through the longstanding third-party doctrine: the principle that, when a person voluntarily gives information to a third-party, the person loses any constitutionally protected expectation of privacy in that information.