A Fourth Amendment Privacy Paradox

In 2018, the Supreme Court created a revolution in the Fourth Amendment. In Carpenter v. United States, the Court found that the government needed a warrant to obtain data about the cell phone towers to which a person connected when using their phone. That data can reveal the digital breadcrumbs of a person’s life – including where they went and how long they stayed. But cell phone users give that location data to their phone providers, third-party companies like AT&T and Verizon. Those companies don’t have the legal ability to challenge a government’s request for the user’s data. In fact, the companies often can’t even notify the user about a request for information. This creates a paradox. Cell phone users, the people who have a Fourth Amendment right to challenge the government’s request for information, don’t know the government is requesting it and third-party companies know about the request but can’t challenge it in court. 

The third-party paradox has massive implications for privacy rights and raises important questions about how to challenge the government’s request for information that might be protected by the Fourth Amendment. 

Joining the show to discuss the third-party paradox and the Fourth Amendment is Michael Dreeben. Michael argued Carpenter and over 100 other cases before the Supreme Court on behalf of the government. He is now a partner at the law firm O’Melveny & Myers, a Distinguished Lecturer from Government at Georgetown University Law Center, and a Lecturer on Law at Harvard Law School. 

Show Notes: 

• Michael Dreeben
• Paras Shah (@pshah518) 
• Resolving Carpenter’s Third-Party Paradox (Part I and Part II) 
• Just Security’s Fourth Amendment coverage
• Music: “The Parade” by “Hey Pluto!” from Uppbeat: https://uppbeat.io/t/hey-pluto/the-parade (License code: 36B6ODD7Y6ODZ3BX)
• Music: “The Clock is Ticking” by Simon Folwar from Uppbeat: https://uppbeat.io/t/simon-folwar/the-clock-is-ticking (License code: FY1TG2G1ESDYMSHF)