42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter
22 Pages Posted: 10 Feb 2020 Last revised: 11 Jan 2022
Date Written: January 16, 2020
This is an edited and adapted version of the 42nd Annual Foulston Siefkin Lecture, delivered at Washburn University School of Law.
The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred.
The lecture then details some of the novel surveillance technologies that are likely to reach the Supreme Court over the next several years. These technologies include drones, smart homes and devices, web surfing surveillance, and pole cameras targeting a specific suspect’s home. Many of these technologies have already been used in police investigations and evaluated by judges in lower court cases. The lecture assesses how the Supreme Court is likely to resolve these cases and uses the framework of Carpenter and its predecessors to make predictions about the future direction of Fourth Amendment law.
Keywords: Fourth Amendment, Carpenter, Supreme Court, surveillance, drones, smart homes, browser history, pole cameras, smart devices, search
JEL Classification: K14
Suggested Citation: Suggested Citation