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Daniel@everydayevidence.og

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The Case after Carpenter

The Fourth Amendment periodically goes through jurisprudence changes...or some fancy words like that...Whether it is tapping telephones or using infrared cameras, the Court has to constantly adapt to growing technologies and what they mean in regards to the privacy of litigants.


Carpenter: CSLI v. IP Addresses

In 2018, the Court handed down its 5-4 opinion addressing cell phone data in Carpenter. Essentially the Court held that the cell-site location information (CSLI) was so precise and so ingrained in someone's personal information, that the government needed a search warrant to access it.

A case from the Northern District of Georgia summed it up:

United States v. Jenkins, No. 1:18-CR-00181, 2019 WL 1568154, at *3 (N.D. Ga. Apr. 11, 2019)



While CSLI is protected under the Fourth Amendment based on the expectation of privacy test, it appears that what does not carry this expectation are IP addresses and the like:


Two Potential Standards

Eventually the Court will have to rule again on this issue as technology advances. And as of right now, it seems that IP addresses do not provide enough "precision-like" information for a person to have a reasonable expectation of privacy in them. But eventually this technology will grow and another case will make its way up the appellate ladder.


So when the next case makes its way up to the Supreme Court, what will the standard be? I offer two predictions.


First, the Court might continue their Carpenter standard which essentially follows a mosaic approach: look at the technology specifically and the facts to determine if that person had a reasonable expectation of privacy in the information gathered. How accurate and how timely does the information reflect on the user?


Or


Orin Kerr wrote an amicus brief for Carpenter that put forward an analogous standard. Essentially the question should be, is the information content based or non-content based?



Conclusion

I predict that the Court will eventually take another Carpenter-like case in the future for the same reason they ruled in Riley (search incident to arrest does not include searching entire cell phone because cell phones have morphed and grown into much more). As internet and data technology enhances, it will become much more efficient and provide a whole lot of information on the user.


But we shall see.