Orin Kerr writes:
Last month, the Supreme Court held argument in Carpenter v. United States, the pending case on whether the Fourth Amendment protects cell-site records. There seemed to be at least five votes sympathetic to ruling for Carpenter. At the same time, there was very little agreement about how to get there. What line should the Court draw, and based on what rationale? No clear answers emerged.
In this post, I want to identify what I think is the best way to rule for Carpenter. To be clear, I don’t think this approach is the best way to rule. My amicus briefexplains why I think cell phone users have no Fourth Amendment rights in their historial cell-site records. But if the Court wants to go the other way, there are better and worse ways to do that.
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