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Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner in Carpenter vs. United States

28 Pages Posted: 16 Aug 2017 Last revised: 17 Oct 2017

Sarah Schrup

Northwestern University - Pritzker School of Law

Matthew B. Kugler

Northwestern University - Pritzker School of Law

Christine S. Scott-Hayward

California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management

Lior Strahilevitz

University of Chicago Law School

Matthew Tokson

University of Utah - S.J. Quinney College of Law

Date Written: August 14, 2017

Abstract

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

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

Sarah Schrup

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Matthew Kugler (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Christine Scott-Hayward

California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management ( email )

1250 Bellflower Blvd.
Long Beach, CA 90840-4601
United States

Lior Strahilevitz

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-8665 (Phone)
773-702-0730 (Fax)

Matthew Tokson

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

HOME PAGE: http://https://faculty.utah.edu/u6012359-Matthew_Tokson/biography/index.hml

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