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Articles by Matthew Tokson
Scaling Laws Roadshow at Nebraska Law: Matt Tokson on AI Surveillance
What happens to society, law and privacy when artificial intelligence makes it possible for police to detect nearly every observable crime? Matthew Tokson, Director of the Criminal Law Program and Associate Dean for Research and Faculty Development at the University of Utah S.J. Quinney College of Law, joins Kevin Frazier, director of the AI Innovation and Law Program at the University of Texas School of Law and a Lawfare Senior Fellow, to discuss this question.
Chatrie and the Supreme Court's Embrace of Privacy Doctrine
I've been blogging here (and here) recently about Chatrie v. United States, the Supreme Court's landmark Fourth Amendment case decided late last month. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. In today’s post, I'll talk about which theories of Fourth Amendment law the Court adopted in Chatrie and which it didn't.
What is Fourth Amendment Law Going Forward?
Last week, I blogged here at Dorf on Law about Chatrie v. United States, the Supreme Court’s first major Fourth Amendment case in eight years. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. Chatrie was a huge win for digital privacy, and it substantially expanded the scope of the Fourth Amendment.
Breaking Down Chatrie v. US, the Supreme Court’s Landmark Fourth Amendment Decision
Last week, the Supreme Court issued its first major Fourth Amendment case in six years: Chatrie v. United States. Chatrie is a massive victory for digital privacy. It holds that geofence searches, which use cellphone data to track all cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant.
Artificial Intelligence and the Lessons of History
Artificial Intelligence and the Lessons of History 27 Pages Posted: 25 Jun 2026 Last revised: 16 Jun 2026 Date Written: June 03, 2026 Suggested Citation: Suggested Citation Artificial Intelligence and the Lessons of History (June 03, 2026). Available at SSRN: Tokson, Matthew J., https://ssrn.com/abstract=6875838 or http://dx.doi.org/10.2139/ssrn.6875838
AI, China, AI race
AIThe AI Race Isn’t Real Published 25 May 2026 The notion of an AI race against China is at the center of the administration’s deregulatory turn. In Congress and the private sector, an AI race against China is also frequently invoked as a reason to favor light regulation of domestic AI companies, even in the presence of serious threat models. But the idea of an AI race that must be won at all costs is wrong. It is fundamentally flawed as a descriptive matter and normatively defective.
The AI Race Isn’t Real
As one of his first acts in office, President Trump rescinded President Biden’s executive order imposing basic safety reporting requirements on artificial intelligence (AI) companies. A few days later, Trump issued an executive order directing federal officials to change existing policies that might inhibit AI development.
Fourth Amendment Law by Analogy
Orin Kerr is America’s leading Fourth Amendment scholar. He is brilliant, prolific, and influential, cited in numerous judicial decisions and countless law review articles.
The Authoritarian Risks of AI Surveillance
Concerns about authoritarianism loom large in American politics. Against this backdrop, another phenomenon may be pushing democracies toward authoritarianism: artificial intelligence (AI) law enforcement. AI surveillance and policing systems are currently used by authoritarian nations around the world. Evidence suggests that these systems are effective in suppressing political unrest and entrenching existing regimes.
The Fourth Circuit Approves Warrantless Location Tracking Via Google Apps, Misunderstands How Location Tracking Works
On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Unable to identify the robber, police served Google with a geofence warrant—a warrant targeting all cellphone users in a certain area at a certain time. They obtained information on several cellphones in the area of the bank at the time of the robbery, including the phone of Okello Chatrie, who was eventually identified as the culprit.
The Uses and Abuses of Government-Purchased Private Data Surveillance
In recent years, police departments and federal agencies have begun to purchase location and other data from specialized brokers in order to track individuals' activities over time. Much of this data is constitutionally protected. But government attorneys have generally concluded that purchasing data is a valid way of bypassing the Constitution's restrictions. I push back on this conclusion in a new article, forthcoming in the Wake Forest Law Review.
Government Purchases of Private Data
The United States lacks a comprehensive data privacy statute, and most states impose only minimal legal constraints on consumer data collection. This regulatory vacuum has given rise to commercial markets in sensitive private data. In recent years, federal agencies and local police departments have begun to purchase this data from specialized brokers in order to track individuals’ activities over time.
The Right to Arm Bears: Unusual Cameras and the Fourth Amendment
by Matthew Tokson A lawsuit recently filed in federal court alleges that Connecticut environmental enforcement officers strapped a camera around the neck of a bear who was known to frequent the plaintiffs’ property. The officers hoped to obtain evidence that the property owners, Mark and Carol Brault, were violating a local law against feeding wild bears. The camera-wearing bear traveled to within 200 yards of the Braults' residence, transmitting images of their property to the officers.
Telephone Pole Cameras Under Fourth Amendment Law
Abstract In a series of recent cases, police officers have mounted sophisticated surveillance cameras on telephone poles and pointed them at the homes of people suspected of a crime. These cameras often operate for months or even years without judicial oversight, collecting vast quantities of video footage on suspects and their activities near the home. Pole camera surveillance raises important Fourth Amendment questions that have divided courts and puzzled scholars.
Fractional Originalism and the Fourth Amendment's Trespass Test
by Matthew Tokson In recent years, the Supreme Court has adopted a trespass test in Fourth Amendment law, holding that the Fourth Amendment applies to government encroachments on a person’s property, among other things. This addition to Fourth Amendment law was mostly seen as a victory for privacy advocates.
Trump’s Fourth Amendment Claims and the Strategy Behind the Challenge to the Mar-a-Lago Search
Editor’s Note: An earlier, shorter version of this piece was originally posted on dorfonlaw.com. Following the FBI search of former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege.
Trump’s Fourth Amendment Claims and the Strategy Behind the Challenge to the Mar-a-Lago Search
Published by The Lawfare Institute in Cooperation With Editor’s Note: An earlier, shorter version of this piece was originally posted on dorfonlaw.org. Following the FBI search of former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents.
Trump’s Fourth Amendment Arguments and the Mar-a-Lago Search
by Matthew Tokson Following the FBI’s search of Former President Trump’s Florida estate, most attention has focused on Trump’s call for a special master to review the seized documents. Trump filed a complaint in federal court asking for the appointment of an external party to review each of the documents to filter out those that implicate executive or attorney-client privilege. As fate would have it, his case was assigned to Judge Aileen Cannon, a Trump appointee.
Carpenter Should Replace Katz in Fourth Amendment Law
For more than 50 years, legal scholars, judges, attorneys, and law students have centered their analyses of the Fourth Amendment on the famous Katz test. It determines in most cases what a Fourth Amendment “search” is and, thereby, whether the amendment applies at all. The Katz test essentially asks whether an act of government surveillance has violated a person’s “reasonable expectation of privacy.” In practice, this standard is notoriously ambiguous and unhelpful.
Carpenter Should Replace Katz in Fourth Amendment Law
Published by The Lawfare Institute in Cooperation With For more than 50 years, legal scholars, judges, attorneys, and law students have centered their analyses of the Fourth Amendment on the famous Katz test. It determines in most cases what a Fourth Amendment “search” is and, thereby, whether the amendment applies at all.
A First Circuit Decision and the Future of Telephone Pole Camera Surveillance
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents suspected that Nia Moore-Bush was involved in illegal drug and firearm sales. So, without obtaining a warrant, they mounted a sophisticated camera on a telephone pole and surveilled her Massachusetts home for eight months in 2017. The camera recorded the front part of Moore-Bush’s house and yard and her full driveway, day and night.
A First Circuit Decision and the Future of Telephone Pole Camera Surveillance
Published by The Lawfare Institute in Cooperation With Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) agents suspected that Nia Moore-Bush was involved in illegal drug and firearm sales. So, without obtaining a warrant, they mounted a sophisticated camera on a telephone pole and surveilled her Massachusetts home for eight months in 2017. The camera recorded the front part of Moore-Bush’s house and yard and her full driveway, day and night.
A Court Divided on Telephone Pole Camera Surveillance
by Matthew Tokson The First Circuit's long-awaited en banc decision on telephone pole camera surveillance of a home has finally arrived. But it's not clear what it means going forward, because the 6-judge court split on the issue 3-3. The dueling opinions take up a whopping 129 pages in total.
Burns v. Town of Palm Beach
Vitruvius wrote that architecture must possess strength, utility, and beauty.1× Vitruvius, The Architecture of Marcus Vitruvius Pollio bk. I, ch. 3, at 15 (Joseph Gwilt trans., London, Priestley & Weale 1826). Two thousand years later, can political communities in the United States ensure that architecture is not just strong and useful but also beautiful? Recently, in Burns v. Town of Palm Beach,2× 999 F.3d 1317 (11th Cir. 2021).
Recidivism Reformation: Eliminating Drug Predicates
The Armed Career Criminal Act (ACCA) imposes a minimum fifteen-year sentence for violating 18 U.S.C. § 922(g) after three “violent felony” or “serious drug offense” convictions. The ACCA disproportionately impacts people of color and imposes significant costs on the federal judiciary and the criminal justice system overall.
The Aftermath of Carpenter v. United States
By Matthew Tokson I recently wrote an article, "The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021," forthcoming in the Harvard Law Review. The article looks at the state of Fourth Amendment law following the Supreme Court’s groundbreaking 2018 opinion in Carpenter v. United States. It analyzes hundreds of recent Fourth Amendment cases and identifies the factors that drive modern search decisions.
Volume 135 - Issue 7
Previous Issue Articles Book Review Volume 135 No. 1 - Nov. 2021 No. 2 - Dec. 2021 No. 3 - Jan. 2022 No. 4 - Feb. 2022 No. 5 - Mar. 2022 No. 6 - Apr. 2022 No. 7 - May 2022 Volume 134 No. 1 - Nov. 2020 No. 2 - Dec. 2020 No. 3 - Jan. 2021 No. 4 - Feb. 2021 No. 5 - Mar. 2021 No. 6 - Apr. 2021 No. 7 - May 2021 No. 8 - June 2021 Volume 133 No. 1 - Nov. 2019 No. 2 - Dec. 2019 No. 3 - Jan. 2020 No. 4 - Feb. 2020 No. 5 - Mar. 2020 No. 6 - Apr. 2020 No. 7 - May 2020 No. 8 - June 2020 Volume 132 No. 1 - Nov.
The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021
The full text of this Article may be found by clicking on the PDF link to the left. Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague.
Meriwether v. Hartop
Fierce debate surrounds campus speech that is harmful toward minority groups — and universities’ attempts to regulate it.1× See, e.g., Stephen J. Wermiel, The Ongoing Challenge to Define Free Speech, 43 Hum. Rts., no. 4, 2018, at 1, 4, https://www.americanbar.org/content/dam/aba/administrative/crsj/human-rights-magazine/hr-v43-n4.pdf [https://perma.cc/2HBU-394U]. Particularly, when professors’ speech effects that harm, are professors protected by the First Amendment? Recently, in Meriwether v.
Can Smart Utility Meters Give The Government a Look Inside Your House?
by Matthew Tokson Information about how much energy a household consumes has historically been pretty unrevealing. It might be mildly embarrassing to run up a high energy bill, but beyond that it’s difficult to think of a less sensitive form of personal data. With the rise of “smart meter” technology, however, energy utilities and government agencies can increasingly use energy data to infer what happens inside of a home.
The Troubling Phenomenon of Enforced Unlaws
by Matthew Tokson Recently, ProPublica broke a remarkable story about Black children in Tennessee who were jailed for a crime that didn’t exist. A juvenile court commissioner charged several children for witnessing a fight between two other children and failing to stop it. This is not a crime in Tennessee.
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test
The Supreme Court’s 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test
Published by The Lawfare Institute in Cooperation With The Supreme Court’s 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.
The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021
56 Pages Posted: 28 Sep 2021 Last revised: 18 Nov 2021 Date Written: September 28, 2021 Abstract Fourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague.
Telephone Pole Cameras and Long-Term Government Surveillance
by Matthew Tokson In a decision issued a few days ago, the Seventh Circuit held that the government can warrantlessly use telephone pole cameras to constantly monitor any home for at least one and a half years. While the opinion was both thoughtful and thorough, with many citations to legal scholarship including my own, the holding is aggressively anti-privacy.
The TransUnion Case and the Lochnerization of Standing Doctrine
by Matthew Tokson Privacy Twitter was abuzz on Friday with laments about the effects of TransUnion LLC v. Ramirez. In TransUnion, a class of plaintiffs who'd been erroneously flagged as potential terrorists by a credit reporting agency sued for damages. In a 5-4 decision, the Supreme Court held that plaintiffs who could not prove that their terrorist designation had been reported to third parties could not sue, because they lacked a "concrete" injury under the Court's standing doctrine.
Government Purchases of Sensitive Private Data
By Matthew Tokson Carpenter v. United States held that the government must get a warrant before collecting an individual’s cellphone location data. Such data would allow the government to constantly track citizens, revealing their activities, associations, relationships, purchases, and countless other details about their lives. But what if the government can just purchase similar data from a private vendor?
Social Norms in Fourth Amendment Law
By Matthew Tokson I recently wrote an article with Ari Ezra Waldman, "Social Norms in Fourth Amendment Law," forthcoming in the Michigan Law Review. We look at how courts use social norms throughout Fourth Amendment law and point out several problems with this quasi-sociological approach. In theory, social norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs.
Predicting the Supreme Court's Next Moves: Fourth Amendment Edition
By Matthew Tokson Now that American politics has returned to something resembling normalcy, it's a good time to consider the future of the Supreme Court in the Biden era. Eric Segall recently previewed the direction that the Court is likely to take over the next several years. As he convincingly argues, on issues like abortion, regulation of business, civil rights, affirmative action, voting rights, and many others, the Court's rulings will likely shift from conservative to very conservative.
Social Norms in Fourth Amendment Law
Abstract Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts.
Originalism, Technology, and the Confrontation Right in the Time of Covid
by Matthew Tokson While procedures vary from state to state, the COVID-19 pandemic has substantially delayed criminal trials throughout the country. Plea bargaining has become even more prevalent than before. And the pandemic has put defendants' constitutional rights in tension with each other, as the right to a speedy trial has come into conflict with the right to a jury trial and the right to confront witnesses.
A Good-Faith Exception for Unlawful Voting
by Matthew Tokson On Saturday, eight Republican electors in Pennsylvania sued in state court, asking a judge to throw out all 2.5 million Pennsylvania mail-in votes. The plaintiffs claim that Pennsylvania’s 2019 mail-in voting law is unconstitutional because the Pennsylvania Constitution implicitly limits absentee voting to specific circumstances. Similar suits have been filed in several other jurisdictions.
A Tribute to Ruth Bader Ginsburg
Writing a tribute to Justice Ruth Bader Ginsburg is a daunting task, because, despite her petite frame, she was a giant. One of us had the honor of clerking for Justice Ginsburg, and the other only admired her and her career from afar. We, therefore, write this tribute from both the personal and the professional perspective.
Inescapable Surveillance
by Matthew Tokson I recently posted a new draft article to SSRN, "Inescapable Surveillance," forthcoming in the Cornell Law Review. It deals with the idea of "inescapability" in Fourth Amendment law, although many of its conceptual arguments apply outside of that context as well. The concept of inescapability surfaced in its modern form in Carpenter v. United States.
Can Yard Signs Dictate the Scope of the Fourth Amendment?
by Matthew Tokson In recent years, the Supreme Court has added a "trespass test" on top of the "reasonable expectation of privacy"test for Fourth Amendment searches. Under the trespass test, any government touching of "persons, houses, papers, [or] effects" for information-gathering purposes is a Fourth Amendment search. This simple-sounding test, adopted in its modern form in 2012, has in short order produced several difficult questions for courts. In 2013's Florida v.
Inescapable Surveillance
54 Pages Posted: Date Written: September 18, 2020 Abstract 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.
Perspective | The feds won’t face legal consequences for illegal arrests in Portland
Federal officials seized at least two protesters in Portland, Ore., earlier this month, threw them into unmarked vans and interrogated them inside a federal courthouse. These seizures very likely violated the Fourth Amendment, which requires officers to have probable cause before arresting a suspect — and news reports suggest that the men were merely in the vicinity of protests. But so far as we know, no protesters apprehended in this way have sued the government.
Supreme Court Clerks and the Death Penalty
7 Pages Posted: 18 Mar 2020 Last revised: 20 Apr 2020 Date Written: February 20, 2020 Abstract This Essay is part of GW's Supreme Court Clerks at 100 symposium. The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.
42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter
22 Pages Posted: 10 Feb 2020 Last revised: 19 Feb 2020 Date Written: January 16, 2020 Abstract 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.
Commentary: On privacy, the Supreme Court takes an uncertain step in the right direction
In its most recent term, the U.S. Supreme Court handed down one of the most important Fourth Amendment cases of the past several decades involving digital privacy. Chief Justice Roberts joined four justices to rule that the police must obtain a warrant before tracking a citizen’s location via his cell phone. The case, Carpenter v.
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