The Volokh Conspiracy

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Volokh Conspiracy

Amicus brief in the Fourth Amendment cell-site case


This term, the Supreme Court will hear Carpenter v. United States, a case on whether the Fourth Amendment provides cellphone users Fourth Amendment rights that limit government access to their cell-site records. Carpenter is an extremely important case. It's actually less important for what it will decide directly (rights in cell-site records) than what it will set the framework for indirectly (rights in the entire universe of non-content network records). But that indirect importance will be huge. The big question: Will the court stick with the traditional framework that leaves non-content records unprotected, or will it adopt a new approach—and if adopts a new approach, what will that be?

Given Carpenter's importance and the fact that a lot of my academic work has in one way or another weighed in on the question presented, I felt obligated to author a friend-of-the-court brief offering my own perspective on what the court should do. I have posted a copy of my brief here. It's a somewhat unusual brief, in that I am its sole author, client, lawyer and funder. But that seemed like the most authentic way to do it.

You can read all of the briefs filed so far in Carpenter, including all the amicus briefs, here. Still to come: Carpenter's reply brief, which is due in a few weeks. The case hasn't been set for argument yet, but it will be argued sometime over the winter and likely decided by late June of next year. As always, stay tuned.