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Inescapable Surveillance, Matthew Tokson
Inescapable Surveillance, Matthew Tokson
Utah Law Faculty Scholarship
Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.
In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot …
42nd Annual Foulston-Siefkin Lecture: The Next Wave Of Fourth Amendment Challenges After Carpenter, Matthew Tokson
42nd Annual Foulston-Siefkin Lecture: The Next Wave Of Fourth Amendment Challenges After Carpenter, Matthew Tokson
Utah Law Faculty Scholarship
This is an edited and adapted version of the 42nd Annual Foulston Siefkin Lecture, delivered at Washburn University School of Law.
The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping …