I have a long post over at Lawfare on the briefing in Carpenter v. United States. The post begins:The Supreme Court will hear argument on Nov. 29th in Carpenter v. United States, a case on whether the Fourth Amendment applies to government collection of historical cell-site records. I wrote an amicus brief in the case that explains many of my views on it. I have four additional thoughts on the briefing, however, so I figured I would offer them here. You can read the rest of the post at Lawfare.
A lot of people have been having good fun with a short opinion by Justice Scott J. Crichton, concurring in the Louisiana Supreme Court’s denial of review in State v. Demesme, which seemed to treat a request for a lawyer as a request for a “lawyer dog.” Eugene flagged the opinion here a few days ago. I thought I would flag that, as strange as it sounds, the result advocated by Crichton isn’t obviously wrong.
Last Thursday, I participated in an excellent debate on Carpenter v. United States, the pending Fourth Amendment case on government access to historical cell-site records. I argued that accessing those records is not a “search” of the cell-phone users, while Alex Abdo (formerly of the ACLU, now of the Knight First Amendment Institute) argued that it is a “search” and requires a warrant. My friend and colleague Jeffrey Rosen, the president of the National Constitution Center, very ably moderated.
@alegalnerd@CStolfe@CrimProfessor But that's a policy argument claiming to be a constitutional argument, I think. That is, if you think a legal rule gives the govt too much power, it "threatens the security of the people." If you think the rule is a good rule as policy, security of the people isn't threatened.
@CrimProfessor In particular, proposed solution is to require cops to get warrants to do this wide-ranging surveillance. By its own logic, wouldn't that be a general warrant the Framers condemned? If warrantless cell surveillance is like a general warrant, how can a warrant req avoid that?
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