The future of digital privacy

Alex Abdo of the Knight First Amendment Institute and Orin Kerr of George Washington Law debate whether warrantless searches and seizures of cellphone records violate the Fourth Amendment in a special podcast hosted at the National Press Club. In late November, the Supreme Court will tackle a very modern question about the venerable Fourth Amendment: Does it allow police to see where you’ve been for the past four months by looking at your cellphone data without a warrant? In Carpenter v. United States, which will be argued on November 29, cell number data placed a robbery suspect, Timothy Ivory Carpenter, near the scenes of several crimes, and at about the same time as those crimes happened.  The phone information was used as evidence leading to Carpenter’s conviction on robbery charges and he is serving a long prison sentence. The Carpenter case has spurred a flurry of activity among Fourth Amendment scholars. Carpenter’s lawyers believe modern cellphone records are fundamentally different than traditional phone records cited in a 1979 Supreme Court decision at permits such searches without warrants. The U.S. Court of Appeals for the Sixth Circuit ruled against Carpenter and said the Fourth Amendment’s search warrant requirement only protects what was actually said in phone conversations. And it upheld a third-party doctrine that the phone records belong to the phone company, they aren’t private information. Note: Audio for this podcast was recorded at an October 26, 2017 live event at the National Press Club sponsored by the American Constitution Society and The Federalist Society and presented with the generous support of the Bernstein Family Foundation.