There was enormously important Fourth Amendment news from the Supreme Court, according to Orin Kerr of the Washington Post. The justices agreed to review the U.S. Court of Appeals for the 6th Circuit’s decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.
This is a momentous development, I think. It’s not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.
Here is how counsel for the petitioner framed the “question presented”:
Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.
And here’s how the United States redrafted the question presented in its brief in opposition:
Whether the government’s acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.
I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?
Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is “yes.” The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.
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