RESTORED
Carpenter v. United States
585 U.S. 296 (2018) · 2018
The Fourth Amendment crosses into the cloud — partway.
“When the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone's user.”
The Ruling
By a 5-4 vote (Roberts, C.J.), the Court held that the government's acquisition of seven days or more of historical cell-site location information (CSLI) from a wireless carrier constitutes a Fourth Amendment search and ordinarily requires a warrant supported by probable cause. The Court declined to extend the third-party doctrine of Smith v. Maryland and United States v. Miller to the comprehensive, automatic, and inescapable record of physical movement that modern cell phones generate.
The Personhood Argument Not Made
Carpenter is a partial restoration of personhood inside the platform fief. The Court recognizes that when the user's daily life is logged automatically by a private intermediary, the third-party doctrine — which would otherwise erase any reasonable expectation of privacy — produces an untenable surrender of constitutional personhood. The opinion does not dismantle the platform's data sovereignty; it requires the State to obtain a warrant before drawing on the lord's records about the serf. The user's Fourth Amendment personhood is reasserted, but only at the seam between platform and government, not within the platform itself.
The Execution Gap Created
U.S. wireless carriers produced an estimated 1.3+ million law-enforcement requests for subscriber data in 2014 alone (Senator Markey's annual carrier survey, December 2014). Carpenter narrowed warrantless access to a specific subset — long-term historical CSLI — but left untouched real-time pings under emergency exceptions, tower dumps, geofence warrants, and the ordinary commercial sale of comparable location data by data brokers. The right is real; its perimeter is narrow.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →