Too big to surveil: the fourth amendment illuminated by ‘modern lights’ and shadowed by obsta principiis in a post-Carpenter world concerned with privacy

Abstract

ABSTRACTThe Fourth Amendment to the U.S. Constitution functions as a shield against excess governmental or police power by prohibiting unreasonable searches and seizures. Since its ratification, legal challenges have tempered this shield by frequently disputing the application of investigative processes and tools, including those that bypass the traditional – and simpler – analysis that focused on physical trespass. But recent technological advancements have prompted novel challenges and have forced the U.S. Supreme Court to adopt a parallel inquiry that evaluates society’s expectations of privacy as an alternate path to invoke the Fourth Amendment’s protections apart from any physical trespass. As revolutionary technology continues to present unique issues, this 200-year-old shield manifests a reflective luster as if polished by years of legal discourse that reveals the priorities of those who would interpret its text. Viewing the Fourth Amendment’s shield as a mirror illustrates not only the thoughts of the drafters that revolved primarily around protecting property interests but also the expectations of modern society with its insistence on promoting privacy. And where the drafters channeled their outrage against the loathsome writs of assistance in colonial times, later Americans continued to denounce the similarly invasive general warrants and attempts by investigators to expand the tools in their arsenal beyond constitutional bounds, especially in the surveillance context. Yet, the problems posed by new technology upon privacy concerns are best resolved by relying on the core principles supporting the Fourth Amendment, previous U.S. Supreme Court precedent, and current societal perspectives regarding privacy as a top priority proven by recently enacted legislation both foreign and domestic.By applying a similar method to address advancing communication technology and its use as a surveillance tool in Carpenter v. United States, the Court turned this shield-become-mirror upon society to conclude that cell phone location information deserves Fourth Amendment protection because of its untiring comprehensiveness and its uniquely detailed nature. Moreover, nearly every American adult carries a cell phone with them almost all the time, making it possible to create a time-stamped map of any cell-phone-carrying-individual’s movements reaching back years and years. Unfortunately, the Carpenter Court did not extend this crucial protection far enough to protect all cell phone location data, and the unmistakable gap in its holding leaves a potential privacy vulnerability the exploitation of which could cause greater harm than all previously disputed surveillance technology combined because of cell phone usage’s general – near universal – applicability. Allowing cell phone location information to be obtained without probable cause and a proper search warrant not only fails to meet the spirit of the Fourth Amendment, it also begins to tarnish that shield such that it no longer reflects historical or current societal values, reducing its goal of protecting Americans to a hollow incantation of words left to languish as time (and technology) marches on.