This morning I posted a new draft article, The Fourth Amendment After Chatrie, on SSRN. It’s about the Supreme Court’s late June ruling, Chatrie v. United States. The article abstract:
At the end of the Supreme Court’s recent Term, the Court handed down a Fourth Amendment ruling in Chatrie v. United States about what is a Fourth Amendment “search.” Although the case has received little attention so far, it is a blockbuster. Chatrie presents itself as an application of precedent, but a close read shows that it repeatedly recasts old cases and adopts new principles for the Fourth Amendment. Chatrie is now the most important Fourth Amendment case on new technology, and it throws into question a wide range of existing surveillance practices.
This Article explains how Chatrie adopts a new course for the Fourth Amendment, and it explains three different readings of the case that lower courts will have to consider. The case can be read as a decision on special rules for location privacy, raising complex questions about what counts as a location record. It can alternatively be read as a decision on cell phone privacy, prompting difficult questions about how far it extends and how cell phone records are different from other records. And it can be read as a universal ruling on privacy in corporate-held records, which would require courts to confront challenging questions of what makes information private and what the ultimate goal of Fourth Amendment protection should be. We cannot know now which reading courts will adopt, but we can already see the three choices and the questions they each raise.
Comments very welcome!
The new article is just an early draft, written rather quickly to try to make the summer/fall law review submission season, so some of the footnotes are incomplete. (No need to comment on those, or typos and the like.) Also, I wrote this draft without reading other scholarly reactions that have come out in the five weeks since Chatrie was decided, as I wanted my first reaction to be my own, so I’ll be adding more on that score soon. I’ll plan to post an updated version when I do.
