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Mike Rappaport
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12/11/2017

The Original Meaning and the Carpenter Case: “Their Papers”
Mike Rappaport

(This is the first of several posts about the Carpenter case.

The Carpenter v. United States case, which was argued before the Supreme Court last week, may turn out to be one of the most important Fourth Amendment cases.  One of the issues raised by the case involves the Fourth Amendment’s third party doctrine.  Does the Fourth Amendment apply to protect records about a person that are held by a third party such as a vendor?  Under the Supreme Court’s third party doctrine, securing this information does not require a warrant, because the information is held by a third party.  As the Court stated in US v. Miller, a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.”

In Carpenter, the FBI obtained, without a search warrant, 127 days' worth of historical cellphone records about a suspected armed robber named Timothy Carpenter. “Thanks to those records, the government identified the cell towers that handled Carpenter's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed.”  The question is whether the Fourth Amendment applies to this type of search. 

(There is a statute that protects the information of cell phone customers.  In this post, I will largely ignore the that statute.  I will address it in my next post.)  

As usual, I am interested in the original meaning of the Fourth Amendment.  While I strongly sympathize with the individuals in these type of cases, it is not clear that the original meaning operates to protect them.  The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The records in this case are likely papers or effects (personal property), depending on the form they are in.  But they are unlikely to be the papers or effects covered by the Fourth Amendment.  The Amendment speaks of the right of the people to be secure in their “papers and effects.”  This suggest that the papers or effects must be owned or possessed by the person’s who seeks to protect them.

I do not really see an alternative interpretation.  One might argue that a person should be able to protect information about himself.  And while that might be desirable from a policy perspective in some circumstances, such as Carpenter, it does not really capture the language here which talks of “their papers” – that is, their own papers.

Does that mean that the original meaning allows the government free access to information about people held by vendors and other third parties?  Not necessarily, which I hope to show in a future post.