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St. Mary's Law Journal

First Page

223

Date Created

1-2020

Publisher

St. Mary's University School of Law

Editor

William Todd Keller, Jr.

Last Page

270

Abstract

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as it arises.

The thesis of this article is divided into two components: in the first, the author argues the Supreme Court’s holding in Carpenter v. United States excluding more than six days of cell site location information (CSLI) is legally erroneous; in the second, the author sets forth a jurisprudential appeal that the Court encourage a legislative resolution of privacy rights by declining to intervene or remedy this societal problem. The author sets forth three arguments for why the Court reached the wrong conclusion: (1) the collection of cell site location information via subpoena is at most a “constructive search”, and thus the Supreme Court incorrectly applied a heightened standard of judicial review to exclude relevant, highly probative evidence; (2) the thirdparty doctrine destroys any objective reasonable expectation of privacy in CSLI because the data is owned by the cellular service provider; and (3) the Constitution’s framers intended the Fourth Amendment to protect the people against trespassory searches of one’s own “persons, houses, papers, and effects.”

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