Fourth Amendment Reasonableness after Carpenter
![handle is hein.journals/yljfor128 and id is 943 raw text is:
THE YALE LAW JOURNAL FORUM
APRIL 1, 2019
Fourth Amendment Reasonableness After Carpenter
Alan Z. Rozenshtein
A B S T RA C T. In Carpenter v. United States, the Supreme Court held not only that the Fourth
Amendment applies when the government collects certain categories of third-party data, but also
that for such collection no process short of a warrant is constitutional. This Essay argues that a
categorical warrant requirement for electronic surveillance is a mistake, and that, when faced with
warrantless electronic surveillance, courts should consider whether such surveillance is neverthe-
less reasonableness, especially where it is legislatively authorized and subject to judicial oversight.
INTRODUCTION
Carpenter v. United States1 is one of this generation's most important Fourth
Amendment opinions.2 Commentators have highlighted and overwhelmingly
praised- the opinion's limitation of the third-party doctrine.3 But just as im-
portant as the decision's effect on the scope of the Fourth Amendment- under
what circumstances the amendment applies -is its impact on the amendment's
1. 138 S. Ct. 2206 (2018).
2. See, e.g., ORIN S. KERR, Implementing Carpenter, in THE DIGITAL FOURTH AMENDMENT (forth-
coming) (manuscript at 1), https://papers.ssrn.com/abstract id=3301257; Susan Freiwald &
Stephen Wm. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 HARV. L. REv.
205, 2o6 (2018); Paul Ohm, The Many Revolutions of Carpenter, 32 HARv. J.L. &TECH. (forth-
coming 2019), https://osf.io/preprints/lawarxiv/bsedj [https://perma.cc/2EFF-UGJ3].
3. See, e.g., Lindsey Barrett, Model(ing) Privacy: Empirical Approaches to Privacy Law & Govern-
ance, 35 SANTA CLARA HIGH TECH. L.J. 1, 7 (2018) (Carpenter provided a rare glimmer of hope
for those who wish to see a Fourth Amendment that fully grapples with the breadth and depth
of technological change....); Danielle Keats Citron, A Poor Mother's Right to Privacy: A Re-
view, 98 B.U. L. REv. 1139, 1163 (2018); Elizabeth De Armond, Tactful Inattention: Erving
Goffman, Privacy in the Digital Age, and the Virtue of Averting One's Eyes, 92 ST. JOHN'S L. REv.
283, 294-96 (2018).](ViewImageLocal?handle=hein.journals/yljfor128&div=39&collection=&method=preview&ext=.png&size=3)
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