The Many Revolutions of Carpenter

By Ohm, Paul | Harvard Journal of Law & Technology, Spring 2019 | Go to article overview

The Many Revolutions of Carpenter


Ohm, Paul, Harvard Journal of Law & Technology


TABLE OF CONTENTS    I. INTRODUCTION                                         358  II. THE NEW RULE OF CARPENTER                            361      A. Carpenter's Broad New Rule                        361      B. On Police Efficiency and Time Machines            366      C. What is the Carpenter Test?                       369         1. First Factor: Deeply Revealing Nature          371         2. Second Factor: Depth, Breadth,                 372            and Comprehensive Reach         3. Third Factor: The Inescapable and              376            Automatic Nature of the Collection         4. The Test                                       378      D. Applying the Carpenter Test                       378         1. Very Likely Covered: Web                       378            Browsing Records         2. Most Likely Covered: Massive                   381            Collections of Telephone and Bank Records         3. Uncertain Application: Databases of            383            Medical Records and Genetic Information III. BEYOND THE CORE TEST OF CARPENTER                    385      A. Carpenter as a Replacement for Katz               385         1. The Subjective Prong: Katz Has Only One Step   386         2. The Objective Prong: Victory of the            387            Normative Fourth Amendment         3. The Argument for Moving Beyond Katz            389      B. The Third-Party Doctrine, Inside Out              390      C. Carpenter and Direct Government Surveillance      392      D. The New Rule of Technological Equivalence         394         1. Information from Inside the Home               394         2. Bailment                                       396         3. Private Communications                         398  IV. CARPENTER'S TECH EXCEPTIONALISM                      399      A. Rejecting Conventional Analogies                  400      B. The Chief Justice's Tech Exceptionalism           401      C. The Argument for Tech Exceptionalism              403      D. Expertise and Analogy                             405      E. Time and Technological Change                     408      F. Refusing to Look Backwards                        410         1. The Surveyors                                  410         2. The Legal Historians                           412         3. The Positive Law Proponents                    413         4. Looking Forward Not Backward                   413   V. CONCLUSION                                           415 

I. INTRODUCTION

The Supreme Court's opinion in Carpenter v. United States (1) has been heralded by many as a milestone for the protection of privacy in an age of rapidly changing technology. (2) Despite this, scholars and commentators have failed to appreciate many of the important aspects of this landmark opinion. Carpenter works a series of revolutions in Fourth Amendment law, which are likely to guide the evolution of constitutional privacy in this country for a generation or more.

The most obvious revolution is the case's basic holding--formation about the location of cell phone customers held by cell phone providers is now protected by the Fourth Amendment, at least when the police seek seven days or more of such information. (3) For the first time, the Court has held that the police must secure a warrant to require a business to divulge information about its customers compiled for the business's purposes, reinventing the reasonable expectation of privacy test and significantly narrowing what is known as the third-party doctrine. (4) This cell-site location information ("CSLI") has become a key source of evidence for criminal investigations, so this holding will revolutionize the way the police build their cases, requiring a warrant where none has been required before. (5)

Building outward, the reasoning of the majority opinion, written by Chief Justice Roberts and commanding five votes, revolutionizes the law of police access to many other types of information, in addition to CSLI. …

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