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The Carpenter Argument

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The U.S. Supreme Court heard oral argument today in Carpenter v. United States, No. 16-402, the much-watched case regarding whether a warrant is required to obtain records from a cell phone company showing which cell towers the defendant's phone connected with at the time that robberies were being committed.  The transcript is now available on the Court's website.

I don't think it bodes well for Carpenter that Justice Kennedy peppered his lawyer with questions throughout his argument and said not a word during the government's argument.  That said, though, Justice Kennedy is among the most difficult to "read" from oral argument, so it is not certain he will vote for the government.

Justice Gorsuch clung to a property rights theory like a dog to a bone, while DSG Dreeben came close to saying, "Seriously? How can anybody think the customer has a property right in these records?"  Of course he didn't really say that, but I will bet a beer he was thinking it.

In a FedSoc teleforum afterward, Prof. Orin Kerr thought the argument went well for Carpenter and that he might get a majority of votes but not on a single theory.  I hope not.  We really don't need another fractured opinion that leaves everyone scratching their heads.  (Kerr wrote an amicus brief supporting the government, a rarity in academia, to put it mildly.)

A major theme in the argument was that privacy needs to be protected but that actually drawing the line would be difficult and possibly arbitrary.  It really would be better for the rules to be made legislatively in this area.

Stay tuned.

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How is a record of where someone is created by private activity protected by the Fourth Amendment?

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