Fourth Amendment Reasonableness After Carpenter

Abstract

In Carpenter v. United States, the Supreme Court held not only that the Fourth Amendment applies when the government collects certain categories of third-party data, but also that for such collection no process short of a warrant is constitutional. This Essay argues that a categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with warrantless electronic surveillance, courts should consider whether such surveillance is nevertheless reasonableness, especially where it is legislatively authorized and subject to judicial oversight.