28 Pages Posted: 16 Aug 2017 Last revised: 17 Oct 2017
Date Written: August 14, 2017
The Court has recognized that public expectations of privacy are relevant to the Fourth Amendment. A growing body of social science research shows that a majority of people: (1) do not knowingly convey their location information to cell phone providers; and (2) believe that law enforcement needs to obtain, and ought to obtain, a search warrant before gathering this information. These studies addressed a range of surveilled information (cell site location and GPS tracking) and conduct (by cell phone providers and by law enforcement). On average across all the studies more than 60% of survey respondents (and often upwards of 70-80%) emphatically asserted a privacy interest in the information contained on or emitted from their cell phones. In relative terms, these privacy interests are as strong, or stronger, than paradigmatic cases where the Court has required law enforcement officials to first obtain a warrant.
These empirical data, detailed below, expressly undercut the Sixth Circuit’s reliance on the third party doctrine in deciding this case, and affirmatively support a finding that warrantless searches of this information violate the Fourth Amendment. This Court should employ these empirical data - a critical tool that informs the proper scope and functioning of the Fourth Amendment - and reverse the decision below.
Keywords: Fourth Amendment, Survey Research, Privacy Attitudes, Empirical Legal Studies
Suggested Citation: Suggested Citation
Schrup, Sarah and Kugler, Matthew B. and Scott-Hayward, Christine S. and Strahilevitz, Lior and Tokson, Matthew, Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner in Carpenter vs. United States (August 14, 2017). University of Utah College of Law Research Paper No. 228. Available at SSRN: https://ssrn.com/abstract=3019457