Transparency After Carpenter

Abstract

This brief invited response to Professor Matthew Tokson’s Foulston-Siefkin lecture on the Supreme Court's decision in Carpenter v. United States makes two contributions. First, I highlight the social, political, and economic factors at play in the Carpenter decision. The Carpenter Court recognized, in particular, that digital surveillance implicates the rights of more than just criminal suspects: it poses unique and unappreciated threats to public governance of policing. The decision, I argue, reflects longstanding preoccupations in Fourth Amendment decisions with protecting the “public” — particularly innocent third parties — from intrusive and baseless investigations. In so doing, I situate Professor Tokson’s piece alongside other scholarship exploring how Fourth Amendment doctrine protects a broader set of interests than simply those of the criminal defendant or suspect.

Second, I highlight some practical obstacles to Carpenter’s approach of constraining intrusive digital searches. By subjecting (at least some) digital searches to the warrant requirement, the Carpenter court promoted values of transparency and anti-secrecy. Yet digital search warrants are governed by a different set of rules than physical ones. Those rules are far more protective of law enforcement secrecy than their physical counterparts. As a result, digital searches remain at a remove from some of the avenues toward democratic oversight and scrutiny that the Court may have intended to promote.

Keywords: surveillance, technology, policing