Collect Call for Clarification: How Carpenter Has (and Has Not) Changed Modern Fourth Amendment Jurisprudence

Abstract

Since the 1800s, the United States Supreme Court has struggled to define the limits of the Fourth Amendment and adapt the scope of its protection to advances in technology. The new ways we use technology to interact, and the role such technology plays in society, create unique questions that judicial precedent based on old technology has trouble answering. Most recently, cell phones and mobile applications have changed the way millions of Americans communicate with each other, and access and store information. For years the government accessed this shared information through subpoenas without triggering the Fourth Amendment’s protection from unwarranted searches and seizures. This was justified under the third-party doctrine—when an individual shares information with a third party they lose their expectation of privacy to it, and, thus, Fourth Amendment protection. In Carpenter v. United States, the Supreme Court qualified this analysis, and held that despite the information being shared with a third party, an individual maintains an expectation of privacy to their cell site location information, a pervasive and historical record of personal whereabouts derived from cell phone communication with cell towers. The Supreme Court’s narrow decision leaves questions about what other types of data may be protected. This Note argues that the implicit logic found in the history of the Fourth Amendment and its jurisprudence suggests that the Fourth Amendment will continue to protect pervasive means for exercising other rights secured in the Constitution.