Protecting the Fourth Amendment After Carpenter in the Digital Age: What Gadget Next?

Abstract

Ostensibly, Carpenter v. United States is only about geographic cell site location information. However, the constant evolution and forward march of technology lead one to wonder, what privacy issue awaits around the next corner? If Carpenter lines up with previous cases in which technology inspired Fourth Amendment challenges, the Supreme Court will find some way to rule in favor of protecting personal information, even if a tension exists with the Court's own past approaches as to how to get there, i.e., whether the breach was one of physical trespass, or privacy. The Supreme Court’s holding and how it arrives at it will have significant repercussions for lower courts. One immediate challenge is likely to be cases involving law enforcement’s use of cell-site simulators, such as the Stingray. In the meantime, the “reasonable expectation of privacy” paradigm articulated in Katz v. United States appears to be a shifting one, as entire generations are growing up accustomed to sharing their private lives on social media, with an abundant and ever-growing choice of platforms for disclosing and discussing one’s whereabouts, activities and thoughts. How the Supreme Court resolves Carpenter will impact cases involving technologies that have not yet arisen, or new uses of existing technologies, and will affect a demographic that is dynamic in its privacy expectations.

Keywords: Carpenter v. United States, Carpenter, geographic cell site location information, CSLI, technology, privacy, reasonable expectation of privacy, Fourth Amendment, Katz v. United States, Katz, social media, GPS, location data, cell-site simulators, Stingray, cell phone, digital data, electronic data