Modern Surveillance and Our Post-Carpenter Legal System

November 20, 2019


Podcast recorded by the Federalist Society's Regulatory Transparency Project featuring Ashley Baker, director of public policy at the Committee for Justice, and Jennifer Huddleston, research fellow at the Mercatus Center:

In a new Federalist Society Regulatory Transparency Project podcast, Ashley Baker, director of public policy at the Committee for Justice, and Jennifer Huddleston, research fellow at the Mercatus Center, discuss the implications of the Supreme Court's decision that the warrantless seizure of the cell phone location records violate the Fourth Amendment.


One notable aspect of the Carpenter decision is that the majority relied solely on the nature of the data in question to divorce the case from precedent. In doing so, the Court emphasized that the decision does not apply to scenarios involving surveillance or new technologies. However, as Baker points out, when a court goes out of its way to say that a ruling is narrow, their reasoning is often very broad. And since the Court's reasoning in Carpenter logically applies to a variety of current and future technologies, the implications are anything but narrow. Law enforcement may adjust their practices, but a lot of unanswered questions remain. The only real conclusion of conclusion of Carpenter is that the third-party doctrine is no longer the bright-line rule it once was.


Baker and Huddleston discuss these points and deliberate how the principles of originalism can apply to cases involving new technologies.


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