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Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States

39 Pages Posted: 31 Aug 2017  

David C. Gray

University of Maryland Francis King Carey School of Law

Laura Donohue

Georgetown University Law Center

Tracey Maclin

Boston University - School of Law

Danielle Keats Citron

University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society

Morgan Cloud

Emory University School of Law

William J. Cuddihy

Independent

Norman Garland

Southwestern Law School

Margaret Hu

Washington and Lee University - School of Law

Renee M. Hutchins

University of Maryland Francis King Carey School of Law

Luke Milligan

University of Louisville - Louis D. Brandeis School of Law

George C. Thomas III

Rutgers Law School

Date Written: August 14, 2017

Abstract

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.

Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.”

Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.”

Keywords: Fourth Amendment, Originalism, Cell Site Location Information

Suggested Citation

Gray, David C. and Donohue, Laura and Maclin, Tracey and Citron, Danielle Keats and Cloud, Morgan and Cuddihy, William J. and Garland, Norman and Hu, Margaret and Hutchins, Renee M. and Milligan, Luke and Thomas, George C., Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States (August 14, 2017). Available at SSRN: https://ssrn.com/abstract=3028875

David C. Gray (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

HOME PAGE: http://www.law.umaryland.edu/faculty/profiles/faculty.html?facultynum=598

Laura Donohue

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202 662-9282 (Phone)
202 662-9282 (Fax)

Tracey Maclin

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4888 (Phone)

Danielle Keats Citron

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Yale University - Yale Information Society Project

127 Wall Street
New Haven, CT 06511
United States

Stanford Law School Center for Internet and Society

Palo Alto, CA
United States

Albert Morgan Cloud

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

William J. Cuddihy

Independent ( email )

No Address Available

Norman Garland

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

Margaret Hu

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

Renee M. Hutchins

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

Luke Milligan

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

HOME PAGE: http://www.louisville.edu/law/faculty-staff/faculty-directory/milligan-luke

George C. Thomas III

Rutgers Law School ( email )

NJ
United States

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