Collective Rights and the Fourth Amendment After Carpenter

David Gray

In a landmark opinion, the Supreme Court held in Carpenter v. United States that government acquisition of cell-site location records from a cellular service provider is a “search” for purposes of the Fourth Amendment requiring a warrant. The majority opinion written by Chief Justice John Roberts in support of that holding is not a model of lucidity. In fact, it seems almost deliberately obscure at several critical junctures. Carpenter is far from unique in this regard. The Court has a long history of mumbling when it confronts new challenges or controversial social questions. Perhaps that is as it should be. Vagueness at the vanguard preserves latitude for the Court to construe its own precedents broadly or narrowly in response to subsequent events and the facts of particular cases, refining and developing doctrine as it goes along. It is therefore hard to criticize the Justices for preserving the possibility of future humility at these moments of maximum hubris.

And who are we to complain anyway? This is just the sort of thing that keeps law professors well-fed. The feast has certainly begun on Carpenter with critics asking impertinent questions such as “What, precisely, is the government action that constitutes a ‘search’ when law enforcement requests business records from a service provider?” and “How, exactly, do customers have Fourth Amendment ‘standing’ to challenge those requests?” This Essay will answer both questions. The key, as we shall see, is that the Court finally seems to be taking seriously the text of the Fourth Amendment, which guarantees the right of “the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” not, as the Court often has assumed, a right of persons or individuals. This shift in focus is subtle, but critical, both as a matter of fidelity to the text and as a way to light the path forward as the Court confronts law enforcement's use of new and emerging surveillance technologies.