WASHINGTON—On news this morning that the U.S. Supreme Court issued its ruling in Carpenter v. United States, holding that law enforcement is required to obtain a warrant before searching a person’s cell site location records, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

Today’s ruling is a victory for the Fourth Amendment. The Constitution protects our right to be free from unreasonable searches and seizures, period. Law enforcement obtaining cell phone location records is clearly a “search” in any normal sense of the word, and—as the Court held today—within the meaning of the Fourth Amendment. This is 2018. While the Framers of the Fourth Amendment could not have anticipated cell-phone technology, they deliberately chose language that shows they recognized the danger of government’s claim of unlimited power to search for evidence of criminal activity. A majority of the Justices today vindicated the Framers’ vision.

It is disappointing, however, that Chief Justice Roberts’ conservative colleagues refused to join in this ruling. Justice Gorsuch stands out, in particular. Gorsuch waxed effusively at his confirmation hearing last year about the applicability of the original meaning of the Fourth Amendment to modern contexts, saying “The technology changes, but the [constitutional] principles don’t. And it can’t be the case that the United States Constitution is any less protective of the people’s liberties today than it was the day it was drafted.” I don’t know what changed between then and now, but it sure wasn’t the text, history, and values of the Fourth Amendment.

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Resources:

CAC brief on behalf of scholars on the history and original meaning of the Fourth Amendment in Carpenter v. United States: https://www.theusconstitution.org/wp-content/uploads/2018/01/Carpenter_v_United_States_Merits_Amicus_Final.pdf

“Cellphone location-data case before high court has Fourth Amendment on its side,” Elizabeth Wydra, Cleveland Plain Dealer, November 29, 2017: https://www.cleveland.com/opinion/index.ssf/2017/11/cellphone_location-data_case_b.html#incart_river_index

“What the Founders Would Say About Cellphone Surveillance,” Brian R. Frazelle and David Gray, ACLU blog, November 17, 2017: https://www.aclu.org/blog/privacy-technology/location-tracking/what-founders-would-say-about-cellphone-surveillance

The Selective Originalism of Judge Neil Gorsuch, CAC Issue Brief, David H. Gans, March 16, 2016: https://www.theusconstitution.org/wp-content/uploads/2017/12/CAC-Selective-Originalism-of-Gorsuch.pdf

Roberts and the Fourth Amendment: A Mostly Pro-Government Vote with Some Important Exceptions, Roberts at 10 (CAC Series), Brianne Gorod, September 10, 2015: https://www.theusconstitution.org/wp-content/uploads/2017/12/Roberts_at_10_08_Fourth_Amendment_0.pdf

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Now in our tenth year, Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit the new CAC website at www.theusconstitution.org.

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