John Wesley Hall points us to two recent articles of note:
Lawfare: The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test by Matthew Tokson:
The Supreme Court’s 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.
This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point.
And then Hall points to another piece by Tokson:
Matthew J. Tokson, The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021 (September 28, 2021). Harvard Law Review, Forthcoming, University of Utah College of Law Research Paper No. 470, Available at SSRN: https://ssrn.com/abstract=3932015. Abstract:
Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.
Read more on FourthAmendment.com.
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