Document Type
Article
Publication Date
1-2020
Journal Title
Washburn Law Journal
ISSN
0043-0420
Abstract
This brief invited response to Professor Matthew Tokson’s Foulston-Siefkin lecture on the Supreme Court's decision in Carpenter v. United States makes two contributions. First, I highlight the social, political, and economic factors at play in the Carpenter decision. The Carpenter Court recognized, in particular, that digital surveillance implicates the rights of more than just criminal suspects: it poses unique and unappreciated threats to public governance of policing. The decision, I argue, reflects longstanding preoccupations in Fourth Amendment decisions with protecting the “public” — particularly innocent third parties — from intrusive and baseless investigations. In so doing, I situate Professor Tokson’s piece alongside other scholarship exploring how Fourth Amendment doctrine protects a broader set of interests than simply those of the criminal defendant or suspect.
Second, I highlight some practical obstacles to Carpenter’s approach of constraining intrusive digital searches. By subjecting (at least some) digital searches to the warrant requirement, the Carpenter court promoted values of transparency and anti-secrecy. Yet digital search warrants are governed by a different set of rules than physical ones. Those rules are far more protective of law enforcement secrecy than their physical counterparts. As a result, digital searches remain at a remove from some of the avenues toward democratic oversight and scrutiny that the Court may have intended to promote.
First Page
23
Last Page
33
Num Pages
11
Volume Number
59
Issue Number
1
Publisher
Washburn University School of Law
Recommended Citation
Hannah Bloch-Wehba,
Transparency After Carpenter,
59
Washburn L.J.
23
(2020).
Available at:
https://scholarship.law.tamu.edu/facscholar/1400