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The 4th Amendment and Searches of Third Party Records


Given the relatively extreme set of facts — the feds subpoenaed 127 days worth of cell phone location records without a warrant — I thought that Carpenter v. U.S. might have produced a narrow opinion that was unanimous or 8-1/7/2 with nutty dissents from Thomas and/or Gorsuch. I was right only about the nutty dissent part: the Court ruled for Carpenter, but 5-4, through Roberts (joined by the four liberals.) I have lovingly curated excerpts from the opinion of the Court, Kennedy’s dissent, Clarence Thomas’s 18th century nostalgia file, and Gorsuch’s latest sophomore dorm room bong hit. A few points:

  • This is a good and important decision. Previous precedents had given virtually no Fourth Amendment protection to records stored by third parties; the majority correctly recognized that this is no longer workable in the mobile phone era.
  • Going forward, Roberts being the swing vote here is encouraging. And as I say in one of the Twitter threads, the Fourth Amendment is one area where Kennedy won’t be missed (and, also, please stop saying that Kennedy is a “libertarian,” kthxbi.)
  • Thomas’s idiosyncratic opinion arguing that the “expectation of privacy” standard should be abandoned is terrible on the merits — another excellent of inadvertent argument against originalism — but at least it’s coherent. Gorsuch’s Krusty Brand Imitation Thomas starts out by arguing that the Katz standard isn’t clear enough and should be abandoned, pivots to some attractive-sounding language about how the third-party rule no longer makes sense, and then vaguely suggests a standard attached to “positive law” and “the law of property” (for records held by third parties?), and then goes off to look for some Doritos.
  • This is a good piece about the potential implications of Carpenter. Obviously, a lot will depend on future cases — as I said, this was a fairly extreme set of facts — but it’s important that the Supreme Court has recognized that it’s not reasonable to conclude that nobody can have an expectation of privacy with respect to records stored with third parties.


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