Friday, January 18, 2019
Alan Z. Rozenshtein (University of Minnesota Law School) has posted Fourth Amendment Reasonableness After Carpenter (128 Yale Law Journal Forum (2019 Forthcoming)) on SSRN. Here is the abstract:
Carpenter v. United States has been recognized as a landmark case in Fourth Amendment law. Commentators have highlighted—and generally lauded—the opinion’s limiting of the third-party doctrine. But just as important as the decision’s effect on the scope of the Fourth Amendment—when the Fourth Amendment applies—is its impact on the amendment’s content. The Supreme Court did far more than find that government acquisition of cell-site location data is subject to the Fourth Amendment. It also held that any process short of a warrant—and thus any level of suspicion short of probable cause—would be inadequate, and on that basis held a law of Congress unconstitutional. This brief essay argues that Carpenter’s application of a strict warrant requirement was a mistake, and that the Court should have instead engaged more directly with the question of whether Congress’s surveillance policymaking was reasonable.