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The End Of Miller's Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Con Law Center Articles and Publications

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority …