Huq on Carpenter: It's Not A Big Victory for Digital Privacy
The latest Supreme Court decision is being hailed as a big victory for digital privacy. It’s not.
Congratulations — a closely divided US Supreme Court has just ruled in Carpenter v. United States that you have a constitutional right to privacy in the locational records produced by your cellphone use. Law enforcement now cannot ask Sprint, AT&T, or Verizon, for cell tower records that reveal your whereabouts through your phone’s interaction with those towers, at least without a warrant.
Carpenter builds on two earlier decisions. In 2011, the Court required a warrant before police placed a GPS tracker on a vehicle to track its movements. In 2014, it forbade warrantless searches of cellphone during arrests. Whatever it’s other flaws, the Roberts Court thus seems to understand electronic privacy’s importance.
But there are a couple of things to know before toasting the Court’s high regard for privacy in the digital age. The Roberts Court, building on what the preceding Rehnquist Court did, has created an infrastructure for Fourth Amendment law that makes it exceptionally easy for police to do a search, even when a warrant is required. The law also makes it exceptionally difficult for citizens to obtain close judicial oversight, even when the police have violated the Constitution. As a result of these background rules, even a decision as seemingly important as Carpenter is unlikely to have any dramatic effect on police practices.
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