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Digital devices and the Fourth Amendment

As the new U.S. Supreme Court term approaches there’s been a lot of commentary about Carpenter v. United States, which presents the momentous question of whether authorities need a warrant to seize and search historical cellphone records that reveal the location and movement of a cellphone user. Here are some links to that commentary:

  • Scotusblog has a series of posts (they’re listed here, as are the various party and amici curiae briefs that have been filed);
  • Orin Kerr and a lawyer for various libertarian amici curiae debated the merits of the issue at a podcast available here; and
  • Stephen Henderson, a professor at Oklahoma, provides a detailed discussion (available here) of Carpenter and how it might (or should) affect the third-party doctrine in the digital age.

On a related topic, a federal district judge in California has held that using a “stingray” device (which mimics a cell phone tower) to locate a cell phone user generally requires a warrant (though in the case at hand there were exigent circumstances justifying the warrantless use of the device). The decision was issued in United States v. Purvis Lamar Ellis, 2017 WL 3641867 (N.D. Calif. Aug. 24, 2017). For more on the case, see this Ars Technica article. (Our supreme court dodged this issue in State v. Tate, 2014 WI 89, 357 Wis. 2d 172, 849 N.W.2d 798.)

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