 in society. We're putting on this event tonight in conjunction with Mozilla, thanks Mozilla for helping us put this on, and thanks to New America for hosting us this evening. I'm about to introduce our opening remarks. But first, just to set expectations for the evening, we're going to start off our opening remarks for about 10 or 15 minutes, go into our panel discussion. And then we have a hard stop at about 7.15 or 7.20 so that folks who want to go watch baseball can get away and watch baseball. If you have time to stay and do a Q&A with us, we'll also be taking questions after we wrap up the formal panel. But before we get to the panel, I want to introduce my colleague at CIS, the honorable Steven W. Smith, now a retired federal magistrate judge from Houston. We'll be giving some opening remarks and take it away, Steve. Thank you, Rihanna. Pleasure to be here, thanks to Mozilla. Also, I have to acknowledge that there's some support here from the Mark Carther Foundation, providing a little financial support, so we really appreciate that. We have a terrific lineup of speakers. Can't wait to hear what they have to say. And so I'm going to try to keep my remarks pretty brief. I think my role here is really more of a table setter than anything else. Carpenter was a long-awaited decision for everybody, especially for me. I took the bench in 2004. One of the very first opinions I ever published in Feds Up was on CSLI in 2005. That opinion was basically a cry for help, a plea for guidance from the powers that be. I was grateful to finally get that guidance in June of 2018 one month before I retired. So better late than never, I suppose. Now that we finally have an answer, at least with regard to certain types of historical, cell-side data, and the Fourth Amendment protections, what does carpenter really mean? Kind of reminds me of that great Douglas Adams novel, Hitchhiker's Guide to the Galaxy. People ask deep-thought computer what the answer to the great question of life, the universe, and everything was. And after seven and a half million years of computation, the answer came back 42. Audience's little puzzle on computer said, now that is definitely the right answer. You just hadn't figured out the right questions. So has carpenter finally answered these questions? Has it finally bridged the gap between the 18th century constitution and 21st century technology? Is it the keys of life, the universe, and everything under the Fourth Amendment? Or has it only raised more questions than it answered? And will we have to wait another seven and a half million years to figure out the answers? So brings us to our topic today. Is carpenter unemployed? Obviously, one way to approach this is to take a look at reported lower-core decisions. I want to keep in mind, I mean, this is the way we've did it tonight and I'm gonna get into the presentation that one of our law students prepared. It's not the best way, it's not the only way to measure the impact of carpenter's real impact. For reasons I'll get into at the close here. Anyway, we asked one of our brilliant Stanford Law School students, Tyler Jones, who's a CIS intern, to track the published decisions. Every published decision, state or federal, that cited carpenter over the year, and he prepared a spreadsheet. There was something like 360-summied cases. He read them all, organized them, put them into a spreadsheet, and then prepared a PowerPoint presentation that basically summarized his findings. And that's what I'm getting ready to walk through with you here. He presented, this is not the first time this spreadsheet has been presented. He presented it at last month's warrant workshop at Stanford that we put on for federal magistrate judges. We had 60 magistrate judges from around the country. The topic was digital search and surveillance. And we had Paul Ohm here, who was the gracious enough to appear as our closing speaker there. Two and a half day, very intense workshop. Tyler Jones gave this talk during lunch of the second day. Very well received by all the magistrate judges. In fact, the first question Tyler got after he finished was, do you have a job after graduation? So I know good work when I see it, so I'll happily plagiarize it for you here tonight. And I'll walk through it quickly. The, basically the outline. One thing I'll note, Tyler used the term settle law versus largely settle unsettled. What he meant was not that the body of law is settled, it's just that the cases that he saw during the year either agreed or were disagreeing with each other or maybe largely agreed with one another. The, basically what he found was really rather unsurprising. I think you all know what carpenter hell I won't go over that. Basically, in terms of traditional third party doctrine applications like customer subscriber information, IP address, bank records, phone call records. Those things were not protected before carpenter and they're still not protected. That core of the third party doctrine is still in place. The cases dealing with exigency, the special circumstances where you've got someone about to be murdered or you have a child kidnapping or something like that. Those circumstances, there's not gonna be a warrant requirement, carpenter didn't change that, carpenter said it didn't change that and the cases that Tyler found bore that out. The really first area of I think large agreement among the reported decisions is that there's really no quantitative, no qualitative difference between historical cell site information and prospective or real time cell site information, location information. I mean where you've been over the last seven days is really no different in terms of the Fourth Amendment of Protection than where you're going in the next seven days. And most of the courts have borne that out. Now, the question becomes, okay, what about where the real time surveillance is less than seven days? And again, you're gonna see some variation there. I think what Tyler found was that, well the variation in this didn't really happen until the surveillance was one or two days or less. Three or four days, the court seemed to be saying, okay, carpenter applies. Less than that, a room for disagreement. I'm moving through these real quickly because actually we could probably make this, I don't know if we could make this available or not to the attendees, but if you're interested. The first area that there was, video surveillance, I'm not sure about that. I think there was disagreement. Well, most of the cases that he found video surveillance found that a warrant was not required. I think this is a little problematic. I think that the cases that came up during this year were poll cameras that were set up in commercial venues or shopping center or outside a store or something on a public setting. Most of those cases I don't think involved, although some of them apparently did, most of them did not involve poll cameras set up to observe a home or areas around a home over a period of time. I think I would disagree with the characterization there that that was largely subtle. I don't think that, I think that was an unsettled area. We do have the wrong, well, I'll move on. There were standing issues here that I don't think really, Carter or Tyler dove into that I don't think really are tied to carpenter. A lot of the cases that he saw were cases trying to decide whether or not the defendant had a property interest in the phone or a reasonable expectation of privacy and the movements of a phone that would belong to somebody else. So a lot of the cases that Carter, that Tyler flagged dealt with standing, which I don't think is really something we need to spend much time on. Until another unsettled area was the stingrays. Again, I think primarily that the primary distinction here, the cases that required warrants are cases that the stink where the stingray was used to track or locate a particular phone. The cases that did not require our cases in which the stingray was simply trying to find a phone number as opposed to location. Although again, I think one of those cases doesn't fit that dichotomy, but I think in any event that that's another unsettled area after carpenter. Although interestingly, I think the DOJ policy is to get a warrant whenever they use a stingray at least as far as I'm, at least that was my experience. Duration of surveillance, again, that's another unsettled area. If you get down to two days or less, courts are having difficulty trying to decide which way to go, whether it's protected or not. All right. Now, there were some other points that Tyler made in the presentation. And just in general, he seemed to, his conclusion was that state courts seem to be more willing to expand on carpenter than federal courts. Federal courts seem to be a little more cautious. There were a ton of Leon, good faith cases, that sort of thing that where courts were using the good faith doctrine to avoid ruling on the constitutional questions. But the, and again, as we saw, there are a lot of cases resolved on standing grounds which I don't think really necessarily implicates much in the way of Fourth Amendment doctrine. Or at this point, I'm gonna just flag some of the interesting cases dealing with non-locational databases that I think came up in Tyler's search. Three particular topics in particular, there's not a slide on these, but the first area that I think is very interesting is medical records, which has always struck me as an area that would be the next move for court moving, extending carpenter beyond location databases. Most, everyone seems to me, feels they have a reasonable expectation of privacy in their medical records, even though they're in the hands of their doctor or their provider. We got statutory protection for those things. Interestingly enough, there was a couple of cases in the database or in the spreadsheet going different ways on this. There was a case out of the Northern District of Illinois involving psychotherapy records held in the hands of the psychotherapist. That court found, yes, Fourth Amendment protection there and third party doctrine doesn't apply. An interesting case out of New Hampshire went the other way in a case involving prescription drug databases that are maintained by state health agencies. New Hampshire has a requirement that any provider provide copies of prescription records to any patient that they issue and those maintain their database. Law enforcement was trying to investigate the Medicare fraud. They sent a subpoena to the state agency asking to get those records. State law required that they only be accessed via a warrant. Of course, this is in federal court and the government argued, well, state law is preempted here. There's an express federal statute allowing prosecutors to get medical records if they're investigating a drug crime, drug related crime via subpoena and the district, the magistrate just there found the Fourth Amendment did not apply, did not cover carpenter didn't apply in that situation. I think that's a surprising result. I'd be surprised if that ultimately held up down the line. Next interesting topic, an area that may be percolating up to the pellet courts is event data recorders on automobiles. I'm sure most of you are aware, I wasn't until I read this case of these cases. Your automobile has something akin to a black box. If there's a crash, it records data about the vehicle's operation immediately before the crash, during and after speed of the vehicle, whether the brakes were engaged, airbags were engaged, whether you had your seat belts buckled and other information about the passengers in the car. Two decisions, one out of Georgia, one out of Florida, directly contradict one another. The Florida case is the earlier case, actually was decided prior to carpenter. It said third party doctrine, well, third party doctrine wouldn't apply here. There's Fourth Amendment protection to this data and you have to get a warrant. Georgia Court of Appeals said almost exact same factual circumstance said no, warrant's not required. That case is now on appeal to the Georgia Supreme Court. Rihanna assisted in an amicus brief arguing that case. Interesting twist in that case for you Justice Gorsuch fans. There is a viable argument in that case, a property-based argument supporting the defendants based on the Federal Driver Privacy Act of 2015 which expressly says any data retained by an event data recorder is the property of the owner or less see of the motor vehicle. So that seemed to be relevant to the Florida Supreme Court or Florida Court of Appeals. Georgia Court of Appeals blew that off. Anyway, that seems to be a coming issue that may be headed for resolution soon. The final interesting topic, interesting non-locational databases are smart meters. I think most of us are aware that your utilities, your utilities to your homes are now being monitored by a so-called smart meter which enables the local utility to access and collect your energy consumption on the 15-minute intervals during the day. And it's a Seventh Circuit case in the city of Naperville. Citizens contested that practice, said that was, they had a Fourth Amendment right of protection for this data and that it was a search for the municipality to get this information as often as it did. The Seventh Circuit said, yes, it is a search. Yes, it is protected by the Fourth Amendment. No warrant requirement, obviously. So you're into the balancing test court found on balance. The government has a sufficient competing, compelling interest to get that information. Court expressly said though, if there may be a different result, if law enforcement is attempting to access the municipal database for investigative purposes. So that's one interesting that something that obviously is gonna be a topic going forward. Okay, one more comment here and then I'll sit down and we'll listen to people have really interesting opinions to share. I think there are caveats about any survey like this. First is, most magistrate judges don't write opinions. They're busy. Don't write opinions on search warrants, especially. And state court judges, state court criminal judges and magistrates who do the great bulk of search warrant issuance in this country never write opinions, at least as far as I'm aware. Maybe there are somewhere, but they're generally not reported at all. So you don't know what you're getting by published opinion as representative of the entire sample are shared by other non-writing magistrate judges. Second point, judge shopping is a fact of life on the warrant docket. Any large city that has, like Houston had, we had five magistrate judges on duty, had a regular criminal duty assignment. The prosecutors knew when I was on duty and they didn't want me, they could wait two weeks and get the next and so on and so on down the line. It's just a fact of life. And a couple of months ago, my good friend Jamie Ornstein, magistrate judge in Brooklyn, wrote a New York Times iPad describing the practice, talking about sitting in his office on criminal duty with nothing to do, twiddling his thumbs and pointing out this has an impact on the shape of Fourth Amendment law because prosecutors can go to the judges that I'm gonna give them a good hearing. And who can blame them? That's just the way our system is. Final thing is, obviously the warrant docket will be the best place to go to get evidence on Carpenter's impact. We don't know, and it's interesting to ponder, does Carpenter now requiring a warrant? Does that mean that there are gonna be more search warrants sought and obtained? Or are they gonna be, is law enforcement gonna be discouraged because, oh, it takes too long to prepare search warrants so there's gonna be no effect or less number of search warrants? And, or even if there are more search warrants, are there gonna be less de-orders? Or is a law enforcement agent simply gonna cut out a paragraph from his 2703D application and paste it into a search warrant affidavit? And voila, he's got a search warrant and with no additional work. And if that's the case, and really you haven't diminished the total number of searches of cell phone records as a result of Carpenter, is Carpenter such a privacy enhancing result? I mean, you know, if the intrusion in our digital lives is the same. Okay, till we get a regular uniform court data about search warrants like we have on wiretaps, we are gonna have to most heavily rely on the considered opinions of experts in the field. Luckily we have assembled some of the best in the field tonight and so at this point I'm gonna turn the microphone over to them and I'm not sure who goes first. Rihanna or you, Rihanna? I like this informal setup, I think it helps make it a little more, I'm missing David. Ah, okay, great. Let's make an entrance. The walkout music again, we're about to give it to you. Nah, nah, nah, nah, nah. All right, thanks everybody again for joining us this evening. I wanted to start off very quickly by introducing our panelists. You have their bios in the sheet that I hand out that recites the tales of their wonderful accomplishments and heroic feats. So there's no need to recount them here. But I'm gonna introduce everybody and then I'll ask each of you just for your quick response, both your thoughts on Carpenter, looking back now over the last 15 months and what do you think especially in light of Judge Smith's introductory remarks. So next to me I have David Gray, who's a professor at the University of Maryland. Next to him is Jimana Musa from the National Association of Criminal Defense Attorneys which leads the Fourth Amendment Center there. Paul Ohm from Georgetown University. Paul Rosenzweig who for purposes of disambiguation I'm going to refer to as Rosie this evening at his request from the R Street Institute. And finally, last but not least, we have Mark Zollinger from the Law Firm and Swilgen. So Dave, all you. So thanks very much your honor for this amazing spreadsheet, which is gonna make the next year of my life a lot easier. And I'll actually pick up a thread that you left behind and one that you discarded. So one of the things that was left on the floor for the government in Carpenter I think was just to lay down on the search issue and hold the bastion or hold the wall, hold the maintain a border at the remedy question. In particular argue that maybe de-orders are constitutionally sufficient for cell site location information. Maybe that wouldn't have been a winner but it would have been a very interesting argument for some of the reasons that you just brought up at the end of your comments. And that is that as we enter a world where there is a greater diversity of means to conduct searches and are different levels of intrusion on privacy or different capacities for those technologies to facilitate programs of broad and indiscriminate surveillance, it seems to me that we're going to have to diversify the universe of prospective fourth amendment remedies. We only have one now, which is the warrant requirement. And there's nothing constitutionally required about the warrant requirement. The warrant requirement is entirely a creation of the judiciary and they could create a more diverse range of prospective remedies. They've already done that in the context of stop and frisk for example. And so what if Congress following on the failed model of 183501 came in and said, well, we're gonna rewrite 2703D but just put in a particularity requirement and we're gonna make it specific to cell site location information. So going forward by congressional mandate, law enforcement officers can get cell site location information retrospective or real time if they can show that it is relevant to an ongoing criminal investigation, that they've taken minimal steps to exhaust alternatives and they're asking for reasonably constrained universe of locations in terms of duration or particular or identified locations. It seems to me that that would be perfectly constitutional and that would be a really interesting conversation that we haven't seen yet. And maybe we will, particularly if it becomes clear that the imposing the warrant requirement hasn't really changed much of anything except to force officers to do what they were already doing under the niceties of 2703D. And then the second point that you discard was the one of standing. And I think the two are closely interrelated because I was looking at the spreadsheet, there's a lot of standing cases here. And only one of which that I saw where somebody who wasn't the owner of the phone was granted standing. And that was a circumstance when there were a bunch of people in a car for eight days and the cops were tracking one cell phone and the court said, okay, well, everybody in the car had standing to challenge that tracking. But for all the other circumstances, there was, it was very clear that courts weren't going to extend the standing to challenge a course of surveillance if you didn't own the phone. And, or maybe if you had the phone on your person. And that is reverting to a theory of standing that I think is in jeopardy after carpenter. And that's less apparent in the majority opinion than it is in the two dissenting opinions, one by Kennedy and one by Justice Thomas, where both of them go out of their way to say one of the things that really concerns us here is that somebody who's not the owner of the records is given standing to challenge a search of those records. And if anything is fundamental about our Fourth Amendment law, it's that you can't challenge a search unless it's a search of you or a search of your property, or a search of your papers. And that's something that is that the Chief Justice doesn't respond to. And it strikes me that he didn't respond to that because he didn't have a particularly good response. That's just something that he glides over in the majority opinion. And that's something that it seems to me we're going to have to ask serious questions about going forward. And it links back to the remedies question because the other Fourth Amendment remedy is the exclusionary rule. And so all of these cases are seen through the lens of the exclusionary rule. But if we had a more diverse range of remedies for Fourth Amendment violations, then maybe we'd be more willing to recognize a broader notion of standing, a broader group of individuals who could challenge police practices and seek the kinds of prospective remedies that would provide security to each of us and all of us that were not being subject to threats of constant and unjustified surveillance. Sorry, was that over long? I'm sorry for that. It's a good way to kick us off. Do you mind if you would respond to that? Sure. And that was, I also have to actually agree this spreadsheet is phenomenal. We've tried an informal tracking. It's nowhere near this. You have to, I'm sure not everybody will be as excited as some of us, but like for the legal nerds in us, it was great. As was your article, Paul, which I'm sure you're gonna talk about. Might bring it up. But just coming off of a couple things you said, I think for us at NACDO, we looked at Carpenter as an opportunity and encouragement to think wildly creatively about how to challenge these things and what kind of arguments to bring up. I know for Nate Wessler who argued the case, I've seen him go around and speak to people and the first thing he'll say is whatever you do, raise the property argument. Our argument is raise every argument. At this point, there's no telling sort of what is gonna be the tipping point or the legal theory or the thread that someone decides to unravel and says you've got something here. Now I know how to take this sort of newish thing and understand it in the context of how I think about the Fourth Amendment or the Constitution or whatever. And so that's sort of what we set out to do is to help people make wildly creative arguments and think through it broadly. Because when it comes to the question of what can be searched and then what are your remedies, the exclusionary rule is just not a great one. And it's just not a great one because there's always a reason why you get a great decision and then there's a good faith doctrine or inevitable discovery or all these other things that say like, yeah, they shouldn't have done it, but then all the information goes forward anyway. And so, like I said, we've thought about this fairly broadly. I think there's a couple of things. It's nice to see the conversation that says get a warrant. I think the ACLU has a sticker that says get a warrant, you can flap it on everything. Realistically and at this stage and phase, it's just not meaningful anymore. It's not meaningful because it's really just not that hard to get a warrant. And I think it's exactly what you were bringing up. You get to take the paragraph off of this application and put it in that application and someone signs off on it and there you go. And so, part of it, and I'm glad you all are training judges is because sometimes it's hard to grasp just how much information is this program or this technology or this data mining system bringing when you say, yeah, go ahead and you can get all this information with a warrant. So get a warrant, I think at this point it's not sufficient. And so we're in this sort of bind where you have the Store Communication Act which is about a million years old and Congress who will not do anything about it. I say this as someone who's tried to make them do something about it. And a situation where you do need some legislative action and you see that not just in Carpenter but other cases where they say, hey, Congress, you all should be thinking about these things. And so when it comes to arguing, I guess that we think about it holistically. So just a few things like, we took what we didn't cover in this decision as the roadmap to what we should be challenging. So Tower Dumps, real-time E911 tracking, real-time Stingray tracking, online accounts, modern bank records. We still think bank records could and should fault the very different kind of bank record these days when people would walk around with their checkbook and their checkbook register. Smart devices and there's arguments about that being in the home and maybe other things versus the ones you wear. Geofencing, where they just go say, hey, Google, tell us everybody who is in this area, which is kind of a huge pervasive amount. And there's questions as to how that fits, but we're working to make it fit. And I think one of the things we've seen and that we've tried to do, and we being the Fourth Amendment Center where we basically are working to create the materials and the trainings and assist defenseliers in making these arguments, is to get some of those remedies up front. So we were able to intervene in a case that is under seal and will not be named and will not have a lot of details, but where they essentially seized a huge amount of electronic devices, computers and otherwise. And downloaded all the information off them and we're ready to search all of them. And intervening early enough that we actually got the decision and it sort of was sustained on appeal that they just can't go through everything. They just can't. And they have to actually put some limits on it before the search. So this is not like once I've gone through everything and you're trying to go backwards and be like, actually you shouldn't have done that you shouldn't be able to pay attention to this and that. But to be able to stop it before it happened was fairly significant. And that's sort of like one of the threads of what we're chasing down. I think there's also the question, and I know now I'm sort of like conflating a Riley and Carpenter decision, Riley being of course the case where they said no, you know, searching someone's cell phone incident to arrest is not the same as looking in their packet of cigarettes that they had in their pocket. But you know, one of the things they talked about and Riley was just how comprehensive that information was. How collected all this information one place that you legitimately couldn't get otherwise, right? You never would have been able to do this in the past. So it's not just the tiny constables. It's the breadth of all of it. And I think that there's an argument there as well when it comes to questions of they said, yeah, no, this doesn't count for like surveillance cameras. But what happens when, you know, the surveillance cameras are everywhere and they're pervasive and you have a smart city and it's linked up with license plate readers that may be face recognition and they can track you throughout the whole city every point, that should change in analysis, right? It gets back to that comprehensive kind of surveillance that is more than, you know, you walk by the street corner that had a camera on it or, you know, you happen to drive over the bridge where instead of paying a toll, they just record your license plate and you keep them moving. So I think that there is also, you know, gonna be a place where Carpenter and Riley meet to make some of those technologies. They said, yeah, we're not really covering these and they have to sort of factor in how they get integrated with all the other technologies and how the programs can sort of data mine them all and distill information in a way that they can't currently that might take us there. So I think those are sort of my first basket of thoughts coming off of your basket of thoughts. So I wonder what it would have been like if we had gotten together in 1968 and we said, here we are a year after this funny cats opinion and maybe it's an incremental step, maybe Olmsted is dead. Let's look at all the kind of lower court opinions that have struggled with this. Maybe we wouldn't have even noticed that one of the concurrences had this funny test about reasonable expectations of privacy. So I guess this is a long-winded way of saying it's early days and although I'm glad that we're having check-ins like this and let's make it an annual tradition, I think it's gonna take a lot of time before we really understand the kind of full sweep and import of Carpenter. And when I was invited onto this panel, the very first thing I said in email was, you should know that I am way on one side, which is I think Carpenter changes everything. And so I have an article, thank you for the plug, the many revolutions of Carpenter. So the title says it all, I'm not a kind of dispassionate person when it comes to my opinion about the sweep and breadth of this opinion. I think it's quite likely that in 10 years we'll talk about the pre-Carpenter cats era and the post-Carpenter era, at least when it comes to kind of technologically abetted surveillance. I don't think the REP test is going away anytime soon, although God, I wish it would. It is a scourge, I think it has had a very, very, very bad run as a kind of protector of civil liberties and I can't wait till we can just bury it and be done with it. But in the meantime, I think Carpenter, if you really dissect the kind of moves it makes throughout, and I hope during the course of the summer I can bring in lots of little tidbits and examples, I think it's possible to defend the argument that this changes fundamental things about how the Supreme Court and ultimately the lower courts think about Fourth Amendment questions. One thing I'll say that will never be reflected, and by the way, great work for a Stanford student, I wish a Georgetown student could have tackled it, but one thing I will say that a study like that, which is so illuminating, so useful, could never reveal is the kind of creativity that an opinion like Carpenter will squash. And so one thing that observers of the Digital Fourth Amendment have been worried about for a long time is an intrepid, creative police detective somewhere realizing that there's this rich database of behavioral information that has never been tapped before, so I think any database created by any Internet of Things device. And pre-Carpenter, when we were in a, like Katz is the only analysis world, it would have been really tempting to go to one of these companies, I know Ring has been in the news a lot in the last couple of weeks, to go to one of these companies like Fitbit or one of the Runkeeper apps and to say, can you give me access to this rich database of user information? And of course their first stop, the police detective would have been the local district attorney. I think post-Carpenter, any reasonably good district attorney, assistant district attorney, will throw up red flags and caution signs at that point. I mean, there is just so much language in the opinion that makes it clear that at least Chief Justice Robertson, the Four Liberal Justices, fundamentally worry about the effect that technology has in creating these digital dossiers about everything we do. And it's not just Carpenter, it's Riley, it's Jones. We now have this kind of emerging and I think durable majority of the Supreme Court, durable as long as Justice Ginsburg keeps taking her vitamins, durable majority of the Supreme Court, that will find that there are certain things about collections of data that give rise to reasonable expectations, privacy, or more importantly, the warrant requirement. And so what you'll often have is you'll have, and I should say I have a long complicated biography, but part of it was as a prosecutor at the Justice Department. So I can imagine myself as a kind of young prosecutor and say no, reread Carpenter, you're not gonna be able to get this at this stage in the investigation. 10 points for creativity, but go back, do a little more police work, come back to me when you have probable cause and we'll get a warrant together. Those will never show up on the spreadsheet. We will never know the kind of creative, flights of fancy that Carpenter has now put to bed. And I think those will be significant. I actually think that a lot of what determines our relationship to the police is the state of police tradecraft, is what they have, what they do, and what their kind of creativity allows them to imagine. And so I think Carpenter will be a kind of creativity killing machine for the police, and that's a wonderful, wonderful thing that's gonna be hard to measure in retrospectives like this. Okay, tons more to say, but that's enough for now. Rosie, do you agree wholeheartedly, full-threadedly with Paul on this? I now know why I'm on this panel, which is to say almost everything that Paul said is right, except for his conclusion that Carpenter is transformative. I tend to think of Carpenter as a tale told by a Supreme Court justice full of sound and fury signifying nothing. And the best way to tell that story is that just a few months ago, Timothy Carpenter's sentence was reaffirmed under the good faith exception that he's gonna spend the rest of his life in jail anyway. And when I, I'm in a think tank, I do half of my time actually doing cases in DC, and when I pull my friends in the defense bar and I ask them, have you seen any appreciable decrease in the use of cell site dumps or reverse dumps or any of the possible things? They mostly say, well, you know, no, not really. Now that's not data, because that's anecdotal, but I don't think there's much to it. And the reason I don't think there's much to it is that it turns so much on what I think of as the unique sensibilities of John Roberts and nothing more. He goes out of, I reread it just for this, and he uses the word unique seven times or distinctive or transformative or digital absurd. He even goes so far as to call the cell phone almost a part of the human anatomy, right? Which there's not gonna be a lot of other things that reach that level of salience, at least in my term. And then he goes out of his way to say all the things that this case is not about. It's not about for him, at least, real time cell site location. I think the move to that is an easy one and is gonna always happen, but he wasn't even willing to go that far. He says it's not about tower dumps. It's not about Smith and Miller and CCTVs. It's not about foreign or national security interests. It's about none of those things for him. So he's deliberately trying to cabinet. And then the part of it that makes it so unpromising for me is that rather than settling on a single ground for decision that might be something that you could build a doctrine about, he trots out seven or eight possibilities. He says sometimes it's about the volume of the data, the frequency of this collection, the length of time of its collection, the sensitive nature of what's being collected. Now that might apply in the health field, but it wouldn't be the volume or the frequency or necessarily the length of time. He says it's about the unique precision of cell site location information, which is really odd because cell site location information is less precise than GPS tracking data. But nonetheless, he trots that out. He trots out the idea that it's forced consent in the sense that you can't live without a phone anymore. So everybody's consenting to this. He talks about the lack of opportunity for people to effectively object to the collection, which you might have in any situation that involves the collection of information from you directly over length of time, like with your doctor, for example. So in the end, a doctrine that has so many possible grounds really has none in my judgment. I mean, there are very few technologies that are going to meet all seven of those criteria in the end. If he picked just one, I've been arguing that we should adopt a mosaic theory of law and prohibit large scale collections when it becomes possible to collect enough data to transform your ability to know facts about people. Because that's something that we can measure in data science. And it will change over time, but that's okay. But it's a kind of hard and fast standard. Or seven days, yes, less than seven days, no. And there I don't care whether it's two or three. But Justice Roberts, through so many possible grounds for this decision at us, that in effect he left it so that the only person who knows what's really, really wrong about historical cell site location collection is him. And he wrote Riley, and he's the only one who knows why cell phones are different than diaries. For the same reason, he just says it feels different. That to me is in the long run, not a sustainable way of creating doctrine that will guide the police. I actually see the opposite. I see police kind of looking at this and being more creative, going to 23andMe for DNA data and trying to link that back up to people through their ancestors. So even if you haven't given data, if your sister has given data to 23andMe, you're at risk. And they look and they say, well, it's not very bloom, it's not frequent. And so I see this as almost a roadmap to how to increase the collection of data without too much judicial interference. If I had to predict, it will be limited to very clear electronic information like cell site location, GPS tracking programs. But even those are voluntarily enabled. So who knows? My two cents. Mark, you spent a lot of your time representing providers. And I'm curious to hear your perspective coming from on the ground, knowing that. Yeah, I thought I was gonna settle the debate between the two polls by taking a middle position, but Rosie lost me at the end there. So I just totally lost me. I get the pleasure of going last. I'm gonna comment on a couple of things that were said and then I'll give my own view on Carpenter. As David's point about standing, I think it's a complete red herring. Standing is not that important here because remember Carpenter is about going to a third party, the phone company, to get data about people. And standing doctrine in the Fourth Amendment is about challenging it after the fact. But here it's the phone company that has to decide do I produce the data? I argued on behalf of Yahoo in the FISA Surveillance Quarter review in 2008 that Yahoo had standing to assert the interest of itself and its subscribers when it was presented with what we thought was unconstitutional surveillance courts and of course you have standing. Microsoft took the Microsoft Ireland case all the way to Supreme Court before the fact if surveillance demands warrants, penas are served on a provider, the provider has standing to challenge it. So we don't have to rely on other people to challenge the doctrine. So I don't think the standing is important as David did. On the spreadsheet, it is great, but it stops too soon because the most creative interpretations of Carpenter came after August 1. The Fourth Circuit struck down the ability to do computer monitoring of probationers in an August 17th decision that was about cited Carpenter. The state of North Carolina Supreme Court struck down satellite-based monitoring of people using ankle bracelets who were not on probation but were registered sex offenders using Carpenter. To your point about, think about human anatomy, the court even referenced human anatomy, said a cell phone might like human anatomy, but when you strap a bracelet around somebody's ankle, it is human anatomy. So I think the spreadsheet needs to continue because I think there are more interesting use of Carpenter coming along. Okay, what do I think Carpenter does? I think Carpenter gives practitioners like me ammunition because she made the comment before about what happens when the government goes to ring, Fitbit, Ancestry, all my clients. And when they go to those places, yes, the first stop is the district attorney, but the second stop is me and my firm. And we have to think about what does Carpenter mean to us and what should we tell our clients that they can do under Carpenter with regard to objecting to a subpoena for data that we think is covered by Carpenter. So what can they do? What test do we apply? When we look back at Carpenter, you said seven things. I think it's four things that the Carpenter decision rested on. It rested on whether the thing that the government is trying to get reveals the privacies of life. The last mile of somebody's GPS location data, where they're going, what they're doing, it reveals the privacies of life. Is it involuntarily collected? That is, it's collected even when a user is not making a phone call. Is it essential to participating in modern life? And then the length of tracking issue, the duration, is it a sustained period of time? So using those four factors, it is true that very few things will meet all four of them if we think that courts will require all four of them going forward. But maybe courts will require three of them or two of them. And to me, the most important one is reveals privacies of life. Does the thing that the government wants to receive, does that reveal privacies of life? And is there a basis to say that the user who gave up that data didn't intend it to be distributed freely to third parties? And so today, I was at the Privacy and Security Forum and we were talking about the mobility data standard and scooters. And how cities around the country are requiring in order to get a permit that the scooter companies give a real-time data fee of GPS location to eight decimals of every scooter at all times and turn that over to the city or they can't get a permit. And the scooter companies are not in a position to challenge that particularly because then they won't get the permit and they can't operate scooters. But other people aren't positioned to challenge that perhaps. And the Legislative Council of California Legislature used Carpenter and CalACPA to say that requirement built into a statute is compulsion under California law and it gets at the very data that's protected by Carpenter. And for a variety of statutory reasons said CalACPA bars that type of permitting, although the city of LA said, that's not binding on us and we disagree. So I think there's a lot of creative things that are gonna happen using the Carpenter decision and the four tests and to try to figure out what data it does apply to outside of location data. But the thing that's much more prevalent than CSLI is GPS. Every app out there is trying to collect GPS either while you're using the app or at all times you're giving GPS data to a variety of different entities. The scooter is one example but I'm going to the game tonight and SeatGeek wants my location to know am I near an event where I have a ticket so it can pop the ticket up on the phone and save me time. I'm not sure I love that but they're getting GPS if I say yes. So the GPS data is going to be everywhere. Law enforcement is going to be looking for that and I think we will see a lot more Carpenter objections going forward, we'll make them. And then I think we'll see more decisions unlike Roberts where we don't really know exactly why. I think we'll see some decisions where they say privacy of life and involuntarily connected is enough or privacy of life and duration is enough and it won't always be for all time the four things. That's my thought. It's a middle position but close to it. Close to me. Close to you. Yeah. I think in every Carpenter panel it should almost become like a karaoke game where you're asked to recite the factors that you see. I mean I agree with you, Paul R that there is a multi-factor test and as you know the law is rife with multi-factor tests and when we rarely have in a multi-factor test this is what makes first year of law school so hard is we rarely have the very first opinion giving you the factors. And so there is many people who've read Carpenter as there are factor tests. The one that I use, again, 32 Harvard Journal of Law and Technology, 357 is actually in Robert's second to last paragraph. He says given in light of the deeply revealing nature of CSLI it's depth, breadth and comprehensive reach and the inescapable and automatic nature of its collection which sounds a lot like Mark's list but I like that it's in the very last paragraph summarizing the test. I think the other gloss I would add on what Mark said I actually agree entirely with what he said is we also have to remember the different kind of proclivities and freedom to act of appellate federal judges versus district court federal judges versus magistrate federal judges and so most of what's on the spreadsheet now are at the district court or magistrate judge level. You better believe that there are lots of creative court of appeals judges who are gonna do exactly I think what Mark said which is hey when I look at this technology which by the way I also disagree with you I think there's tons of technologies that fulfill all four of these factors but they're gonna say factor three is missing a little bit I'm still gonna say that this is a carpenter thing. So I guess the lesson here is the creativity of the defense board, the creativity of the providers, the creativity of the prosecutors are gonna be risk averse and then the creativity of the court of appeals judges means there's lots of paths to extend carpenter and then we'll wait 10 years to see what Roberts wants to do with it at that point. And then obviously I have the optimist view on it. You look at it like there's so many factors and I'm like oh there's so many factors. It's all about the emphasis. But I think one of the things and it's something that we see fairly regularly which is there's an education curve where sometimes those of us sitting on this panel would think about these things and read about all these random things and get into technical nuance of this versus that and do they really collect this data? What does this data say? Most people don't live that life. Like they just go about life and they're like hey I got on this scooter and it was really cool and it got me here real fast and then you say yeah everybody knows who you are. Like what do you mean? It doesn't occur to them that you've now swiped it with your smartphone to unlock it in your form of payment and it knows it has GPS because obviously they gotta go pick it up and it knows you went from here to here at this time and it doesn't even occur to people. And so sometimes it's the scope and the scale and being able to tell that story that moves both public opinion and judges. And like I said, I agree. We're sort of really early on. But I think that some of these things aren't really gonna be fleshed out till you get to the appellate level and we're starting to see though in the arguments that we're helping people make conversations where like in one particular case they got in a cell phone, downloaded all the information off the cell phone. They got the warrant to search the phone. The warrant had Napa David attached that said that sort of kept in the search saying we're looking for this period of time, these types of things. Somehow that part of the warrant never quite made it to the company that downloads all the information. So they just downloaded everything, right? Cause isn't that convenient? The thing about it is once we were able to help make the argument where the judge was like, wait a minute, so why did this happen? Why didn't they give that? Well, we're not sure why it didn't happen. Is this your practice? Well, it won't be anymore. Well, so who was responsible for handing this over? And the prosecutor had to stand there in court and be like, well, it was me. That's actually a really powerful thing because sometimes these things happen because they're not revealed. Or people don't have the full understanding. But I think as you're able to have these hooks, no matter how many tests it is, to start to make these arguments to say, sure, this looks like this for these reasons and you should know that this thing isn't really just this thing, but it's attached to all these other things and it works this way. And then something pops up in the news. It's like, yeah, everybody's sharing everything on Facebook all the time. I'm checked in here, I'm checked in there, I got my face recognition on. And they're like, what Cambridge Analytica? You know, again, for most people that the things don't connect. But as we start to sort of tell the story and help connect them, I think particularly in courts and in front of judges, it will start to make a difference. I'm happy to join your yearly panel. But I think that's part of telling the story. Carpenter does, related to what you just said, which is that it was hard to find privacy in the public sphere before carpenter. The idea was, whether it's third party doctor and there was, if you put your face on the street, anybody can look at it and see it. You're exposing it to others. Carpenter was like, well, you're exposing some data, but you're not really intending to expose it to everybody. And you really don't have any choice about exposing it and exposes a lot. And so maybe it should be protected. But we're about to enter facial recognition everywhere. And we're already seeing laws about license plate readers. And you would think, license plate on a car, that's not a lot of privacy interest, right? I know that my car is registered. I display the plate in the front of the back. Anybody should be able to read it. But with the technology advances that everybody can read it everywhere at all times and track you, states are passing license plate readers laws that prevent the police from just doing that all the time and prevent companies from providing that information to the police. So we're about to enter this world where all vehicles will know where you are at all times. All streets will have facial recognition technology on it. And then we really have to have privacy in the public sphere. It will be a fully-surveillance society. And carpenter is the first, maybe it's not the first. But in my book, it's the first one that says, yes, even though you're exposing the state to other people, you can have a privacy interest here. And if carpenter builds away, Paul thinks it will. Paul, oh, it will get applied when we look at facial recognition and license plate readers and tracking your, not just your AV cars, but the cars we all drive. Paul, do you think it's privacy? It's me. Yeah, so Paul, oh, but that's so, so Mark, I just noticed that you slipped back into privacy talk again. It's an enmity. And I think one of the, so there's definitely a privacy thread in carpenter. But I think I agree with Paul that one of the potential great gifts here is to stop talking about search exclusively in terms of physical intrusion or violations of reasonable expectations of privacy that society is prepared to recognize is reasonable. And start talking about search as looking for, trying to find somebody. And of course, if it's in public space, you can look for, try to find somebody in public space. And so there's not, we don't have to worry about whether you have a reasonable expectation of privacy or not. We worry about whether law enforcement are searching for you. And of course, if they're trying to find you, they're searching for you. And that's actually something that's well-grounded in common law, going back well before the Fourth Amendment, where there are scads of judicial manuals from the 18th century that talk about going, magistrates going forward, and sheriffs going forward, and looking for people on public streets, and looking for people in public houses. And so getting back to that common sense notion of search, we don't have to talk about privacy anymore and having privacy in public that rather we can be searched for in public. And that gives us, I think, a much more expansive understanding of our rights without having to claim privacy. And the word you didn't say that, as a tweaking, you didn't say it's power, right? Yeah, this is my hobby, of course. The Fourth Amendment is all about constraining government power, not about protecting privacy. But I'm gonna take it incrementally. Yeah, I mean, one thing I've said in some of my writing is, we had this funny 50-year period, which just ended, where we realized that privacy was a pretty good proxy for power, that invasions of privacy were those moments when we thought the government had too much power. But the amendment was never about privacy. The amendment was about the kind of, you know, redcoats and general warrants and rits of assistance. And I think it's significant. I mean, again, I've read this opinion 50 times, like the tabula rasa, I'm looking for the little tiny, there's a terrible mixed metaphor, the little tiny time bombs in here that Chief Justice intentionally or otherwise have planted that will go off in the future. So early on, you know, there's always this early paragraph where they say, oh, here's how we apply the Fourth Amendment and your eyes glaze over. If you're a law student, you just get to the next part. I think the two quotes, he chooses are unusual and they've appeared before, but not always. One is Boyd, which is not even good law, right? And he says, it's a great opinion. Yeah, it's good, but not great. Wait, right, it's great, but not good. That's very good. On this score, our cases have recognized some basic guideposts, right? So here's how you apply the Fourth Amendment. First, the amendment seeks to secure the privacies of life against arbitrary power, right? So it's right there, it's about power. And then the second one is DeRee, which again is not usually part of the canon that we cite in these paragraphs. Second and relatedly, a central aim of the framers was to place obstacles in the way of a two permeating police surveillance. I mean, I think that's a profound quote for the chief to kind of surface right at the start of this opinion, saying, it's not even about, it's not even about, you know, having an efficient police force and our privacy too. It's about affirmatively putting obstacles in front of the cops. It's about forcing the police to be less efficient than the technological modern world otherwise let them be. And again, I don't want to read too much into these two quotes, but you can make a lot of that second quote, right? But that's, he's taken from Justice Jackson there in the context of talking about general warrants. Absolutely. And that appears at the end of the Riley opinion as well. And so you and I think alike, hope, I don't want to speak for you. I hope that this is the last time we think of privacy as the touchstone of the Fourth Amendment. That's what it's all about. It's about, do we have super cops amongst our myths and what do we do about it? And if we do have super cops, we can stop them using what the framers have given us. Well, I think there's sort of like the step beyond that too, right, which is you can have this kind of massive invasive collection of information on someone that isn't even targeted, right? Until the point you decide you're targeting them and then you can like dig back and find it all and construct this whole picture, right? That was part of it. You can go back and like recreate their entire sort of historical field and never need you wanted to track them. And so I think that there's some, there's sort of, it's leaving open a lot of not, because they don't want to be embarrassed, future embarrassment with their opinion looking too backwards, right? And so I think it's leaving open the recognition. And you know, he may be, Justice Roberts may be a little, I think paranoid is the right term. He's obviously focused on these things. You know, I was really fascinated by the commencement speech he gave at his daughter's school where he's talking about artificial intelligence and all these things, you know, big data and beware of the robots. Like this is, you know, it's not like making this stuff up. But it's obviously very present in his mind in a way to say that like, this is not just the thing in and of itself, right? This is about this sort of comprehensive picture that at any given moment they could decide to focus in on somebody and then go back and recreate it from the way that this information is being collected. And so I think, you know, in some ways it seems like a very messy opinion and other ways I think it left a lot of doors open with the understanding that there's gonna be, you know, the need to walk through them in the future. I guess. If you don't mind going fishing for it, for my red herring on that precise point, is that one of the aspects of standing that I think comes forward from Jones through Riley into Carpenter is a recognition that was lost for a while, which is that the person who stands in court stands for all of us. And so they're standing there as our representative, as an asking for prospective constraints on government power that will guarantee to each of us and all of us a sense of security against threats that otherwise would be present if you grant law enforcement officers an unfettered discretion to use a particular means and method. And so what I think we're seeing is we're gonna go technology by technology, but one of the central questions in each one of these is going to be scalability. What happens if we say, okay, government agents, you can use this means and method at your own discretion? No constitutional constraints. And so somebody's gonna come in and have standing to say, okay, well I don't want this camera pointed into my backyard. And I think that the constitutional question now is fundamentally, well what happens if we say no? And the answer to that is that the government could put up a camera that's pointing into your yard and your yard and we'll have the Chief Justice, Allah Jones saying, you can put up a camera looking into my yard, well then no way. And that is an aspect of standing that is present in the carpenter decision that feeds into the understanding of the constitutional dimensions of the case. That it's not just carpenter, it's everybody. This is the opening line of the decision. There are more cell phones in the United States than there are people. And so from the beginning he's talking about the pervasive threat that is posed if we give law enforcement officers unfettered access to cell site location information. It's everybody. And that is gonna be, I think, one of the big questions that is asked every time one of these news technologies comes in front of a court. Can I take a picture? Everybody who's subject to the surveillance or is making a point about the technology, technological capabilities of the government if you allow access to this data. It's the tiny constant, maybe both, but it's the tiny constable in the trunk point. An example came up for me the other day. Airbnb was arguing at the city of New York about their new home sharing rule, which was that every month all the home sharing platforms had to provide all the data of all the transactions that took place on the platform. That's not actually on the spreadsheet. It's on the spreadsheet? Okay, so we were involved in that case and one of the things the court said in looking at the Fourth Amendment issue is that Airbnb had rights, had Fourth Amendment rights, and it said no business, in not in this technology age, would have been forced to turn over all of its custom records, all of its trade lists at any time. It would not have been technologically possible, but now with a push of button you can duplicate their entire database and that's not the way it should go. There should be some sort of pre-compliance review and this didn't provide an opportunity for it and at a minimum you have to issue a subpoena to them so they can object. But it was the technological impact of the change that you could just push a button to get the entire customer list that motivated the court. And so I was going back to your point is it about it was ubiquitous, were all affected or is it about look at the power of surveillance if this is allowed and if they vote? I just think you guys are... This is a new means that is potentially at the disposal of law enforcement. And so the question is, do they get unfettered discretion to use that means? Or is there some kind of constitutional constraint on that means? I just think you guys are all together too optimistic. I mean, you know... Oh, well, then I hope. I mean, I agree that John Roberts is personally deeply skeptical of technology. That's because he's 68 years old and he doesn't understand it, right? But if you think that John Roberts has been transformed into this anti-governmental power person who believes fundamentally that giving too much information to the government is a bad thing, you've not read the rest of the canon that he's written about. When he gets comfortable with the technology or he thinks it doesn't apply to him, I'm willing to predict he goes nowhere near this ever again. Scooters, we were just talking about, he can't imagine himself using a scooter, so he doesn't care. I mean, I don't know for sure, of course, because he hasn't done the case, but there are now four solid votes to retain governmental authority. Those Gorsuch may surprise us, but he's gonna go off on this crazy property theory that wouldn't apply to anything that you give up voluntarily by clicking through a consent thing, like the GPS on your app. Well, he's a positive law theory, but not a property theory. He used the example that CP and I should have kicked in in this case as the privacy rules for consumer proprietary network information. He said CP and I would have been an argument here. You give that up voluntarily, but there's a special privacy protection. But that's a statutory thing. That's not a constitutional thing. I don't think he would think of it. I don't think he thinks that anything that isn't property is likely protected. I think Flabbergasted, of course, it takes that positive law theory of the Fourth Amendment anywhere. But let me share your cynicism on this point, and it's actually the opposite of the creativity point that you were making, which is the creativity of law enforcement to just ignore the Fourth Amendment. So for example, on information and belief, there is a practice in many urban centers now for law enforcement officers to show up at the emergency room where a shooting victim is being treated, actively treated, sees that person's cell phone, sees that person's wallet, and search the cell phone. On the theory that because this person has been shot, looking at their network will reveal people who are gonna go out and pursue revenge, right? So they're trying to get ahead of the next shooting or try to figure out who the shooting was. But they're just seizing these phones and searching them, and based on the conversations that have gone on, they don't think that it's a Fourth Amendment event at all. And they're just like, wait a second. There's this Supreme Court case. John Peters is just as creative as defense attorneys. And they're gonna, I mean, the FBI waited for two years to find a terrorist case that involved encryption. Turned out that they didn't find quite a good enough one to flip it, but if it had been an active terrorist case instead of a retrospective case, my bet is they would have won going away. So they're gonna have one of those someday soon and in just about any one of these databases. That's, I mean, I mean, contrary to what I may have left you with impression, I actually think that there is a good reason to be afraid of these large-scale data aggregation. I just want to ground them not in some sense of the last mile of privacy, because that's a value judgment. I wanna try and ground it in some scientific or measurable thing, a length of it, volume, things that we can define. How much information does it take for me to be able to infer your location for the next year? If you make that a measure of it, then that's too much to collect for beforehand. And the answer is something like a month. And I can infer about 83% of where you're gonna be next year. That sounds to me like something much more concrete that a judge can hang his hat on and should be hanging his hat on. But as long as we have, it seems to me, so long as we have too many standards, right? Judges are gonna go all over the world on their tests, and ultimately it's gonna depend upon five justices on the Supreme Court. And you know, I mean, you were talking about Ginsburg and her vitamins, what was it, you, right? I mean, that's realistic. I mean, that's a realistic thing. One change of a vote out of the liberal majority, and Carpenter is a dead letter that gets pounded into the ground because it's not grounded in anything that is concrete and measurable. And then it'll be 25 years before it can be revived by the subsequent Butt-Gagag administration in 2042. Right? Together, you're a concrete and measurable point. I think we have heard some discussion about whether, you know, we're going back to excellent opening remarks by Judge Smith. Are there certain types of data that just should be placed beyond the pale? That's very concrete. We could define them type by type, where we would just say, even if you get a warrant, it's not enough. And is that something that you would consider feasible? Question for the panel, and if so, what types of those being? Well, we could see it being both, because we're also seeing the emergence now, right, of these sources of positive law that Justice Gorsuch, among others, was concerned about. I think Mark mentioned CalACPA, where we have states that are passing laws that by statute say, state authorities have to go and get a warrant, even for types of data that aren't necessarily content. But even types of data that are held by third parties that wouldn't necessarily be covered by the Fourth Amendment under, you know, however many fingers you can count to on the courts is currently composed. But as we also see greater local uptake of interest in particularly invasive forms of surveillance, particularly going back to the point about surveillance in public, that can be extremely all-pervasive all-encompassing, whether that's license plate readers or facial recognition, such as body-warrant cameras, are there, are those some examples for this take facial recognition as one of them, as something that just needs to be placed, you know, outside of being grabbable over any spirit of time, warrant or not? Are there things that you think should be beyond the pale, even with a warrant? Juman, I'll start with you. So I would not draw the line that way. And I'll tell you why. I was looking down at myself. I don't know if this is subconscious. You guys probably can't tell. The scarf has camels on it, right? So I think this is, it does, you know, I didn't think about this one. I put it on this morning. But I think, you know, to me, I see this more of the ability to sort of get the camel's nose under the tent. And I just say that because I think, you know, to sort of try and draw this one, but not that one always sends you down the wrong road for a lot of reasons, because, you know, if you can't use this one, you really figure out how to use the heck out of this one. And so like, I don't think that that is the best sort of formulation. But, you know, I have, you know, I'm still gonna stick with my optimism, right? Like, yeah, maybe Justice Roberts is not on a lime schooner. It doesn't mean his kids don't ride them or his grandkids won't ride them. Or, you know, somebody in his family, Lisa's nephew, whatever, they're on such and such app and so and so whatever. And they start to, you know, he cares about more than himself. I would like to think, right? Maybe not me, but his family. And so, you know, I think that there's still, you know, a broader perspective on it. So like the way I see it, this was the first foray into beyond something concrete, right? Like there was that, there was, you know, Jones was like, no, but they actually trespassed, they stuck something on his car and they shouldn't have done it. And then Riley was like, this is, you know, this is so much not like this analog thing that we have to think about it differently. And this was the first one where it was sort of like out there in a different way. And so maybe, you know, as a decision did it come through with the clearest most concrete of like how you draw those lines? No, I think it gave everybody the tools to try and draw those lines. And yes, it's gonna be like a period of time where there's a scramble, where, you know, and we've seen it law enforcement or prosecutors will define it like this narrowly, right? I mean, there's some stuff where they're like clearly just like emails, they never got to the Supreme Court. You know, after Worshack, they're like, whatever email content, we'll just get a warrant. Again, going back to Congress, still can't get them to pass that, right? Which is fairly basic at this point, not even like a broader fix. But, you know, like I think there's some pieces where they're like, all right, we'll let that go, we've clearly lost that one. But there's gonna be a lot of like fertile ground and I think that there is, you know, again, rather than sort of trying to go at it from the perspective of this information you just can't have, because like what, my genetics, my DNA, they've got that. And they keep finding new ways to get that or, you know, is it iris scans? You know, they play with that technology. I don't, you know, I'm sorry? We were trying to, iris, iris scans. You know what I'm saying, like at some point, like the way they're starting to draw everything together, there are far, there's far more money in developing more and more invasive ways to like data mine and put all these things together than there is in, you know, thinking creatively how to litigate these things. So I think it's much more useful to think about what are the broader, what is the way to draw this that makes a clearer line of what the government just shouldn't be able to do, right? So I guess I'm going back to your power argument versus, you know, the question of is this one thing too invasive versus this other thing? Like, I think this is part of a progression that will get us to something that has sort of a more comprehensive floor that says really, you just can't go beyond this. You know, but it does take time and you know, the justices are older than your typical tech user and all of those things are true, but everything is not going to stay here, right? Like the tech will keep developing, the slips will keep happening, the information will keep coming out, people keep getting angry, Congress will try to pass laws, they probably won't do them very well, and there's going to be litigation around that and having to figure all that out and I think all of that is going to play into the question of where do we go from here? Better than a, you just can't do this thing. I mean, I love that your question lets me talk about Boyd for the second time in this panel, right? So Boyd, 1880 something, 80, yeah. Clearly, you're a huge fanboy of this, right? So one of the rules that emanates from it is the mere evidence rule. So warrants can be used to obtain fruits and instrumentality, but not mere evidence. So records kept by a third party. And so, fast forward to kind of liberal lion, Justice Brennan in one of his first opinions, Warden B. Hayden, right? Says, no, no, no, the mere evidence rule doesn't make sense, we can use warrants to get mere evidence. But we had this very long period of time where the answer to your question was, yeah, there's certain things you can't get even with probable cause and a warrant. The other case that you made me think of, I think, it's the long time since I taught this case, Winston V. Strahan, which was. This is a law firm. Which was, okay, that's all right. It's Winston V. Someone, which is compelled surgery. Compelled surgery to pull a bullet out of a body, and the court said it doesn't matter that you had a warrant, that's too much of an invasion in your personhood to allow it with a mere warrant. And so, is there something like that in the kind of tech and data realm? Sure, your thoughts, right? And so, one thing I love about the Chief Justice's opinion, and I talk about it in my article, Harvard Journal of Law and Technology. What was the site? Yeah, exactly. Is that he is engaging in kind of science fiction, what if, phenomena throughout this opinion, and Riley, right? He's talking about UFOs and Martians and rockets to the moon. And so, he is kind of liberating us to responsibly be science fiction authors when we think about the near future of the Fourth Amendment. And so, if you've looked at the studies coming out of Berkeley and out of an institute in Japan where you put someone in an FMRI machine and you show them a thousand images and you say, think of one of those images. We are now able to recreate the image that they were thinking of. And by the way, this is all in lockstep with research that allows you to do portable FMRI that kind of work, you know, someday at the police station. And so, my guess is when that case comes to the court, and that might be 20 years from now, the court's gonna say, probably cause ain't enough, right? If you are literally probing someone's thoughts, we're gonna need something more, or maybe we're just not gonna let you do it. Now, maybe not a satisfying answer because that's not exactly the same thing as saying GPS, but I think it proves the extreme version that there should be a limit. And once we agree with that, then the question is where do we draw that line, right? See, I think it's interesting because your question prompts the thought that I hadn't had before I was sitting here, so this may be totally off line. But I would have thought that the strongest case for blanket rules against collection or super warrant requirements would be for things that are immutable, like facial recognition, iris, things like that. And I'm trying to put Justice Roberts of Carpenter together with his vote in King versus Maryland, which involved the involuntary collection of DNA from people who, before their conviction, so who were desjure, utter innocence. And yet, he seemed to have no compunction at all, at least no recorded compunction. He didn't write, right? It was Alito, I think, who wrote. But he voted with him without so much as a buy or leave saying, we can collect DNA, this immutable thing, and allow the state to create this massive database of DNAs of arrestees, even for minor offenses, traffic offenses, now granted it was five-four, but it seems to me that your question raises very clearly, for me, again, a skepticism about over-reading Justice Roberts's commitment to this as an anti-power or anti-technology, an anti-power thing, but more as a, I don't understand it, so I don't like it, sort of thing. I may be wrong, now we're doing psychotherapy, which is... On you, yes. But I can't see that John Roberts being really upset with collections of DNA. But I also, you know, this is a question of, can he see himself or somebody in his immediate sphere getting arrested? He's been arrested. Well, but I don't think he sees it the same way. I mean, I think there's a different idea, you know, frankly, when people think about who is arrested, who is getting their DNA taken. But Riley, I don't know. But you also see language in the Carpenter opinion that seems to expand Riley out just more generally. The word generally is actually in there. Sure, but all I mean is that the empathetic, Justice Roberts' empathetic reach extended to people who had been arrested in Riley by definition. But yeah, the King was a Kennedy opinion, and rumor is that he regretted it almost as soon as it had been submitted. And Justice Glee, of course, wrote that scathing dissent based largely on concerns about governmental power. But I just wanted to answer your question. So I want to put in a plug for something that is not mine, which is the ABA model rules for law enforcement access to third party documents. And gosh, it came out, what, Paul? Is it seven, eight years ago now? So Luke is five, yeah. So seven years ago. And that is a really useful, that's a piece of legislation that a legislature could adopt that sets incrementally higher hurdles of access to different kinds of information based on assessments of the privacy interests. And so it's not something, it's a really interesting document for a number of different reasons. One is that it really takes seriously this idea of gradations of privacy interests. But two, it imagines a whole set of different kinds of prospective remedies that put different levels of constraint on government actors. So sometimes they just have to have a considered internal conversation about it and say, yes, we agree as an office, we're gonna do this. Sometimes they need to get a super warrant. And there are a number of different places along that range. And so it doesn't directly answer the, is there anything that's beyond the pale? But it does suggest that as legislatures try to deal with the potential fallout of carpenter, if they can get their acts together, that there is at least a model out there for setting different levels of constraint on government actors based on the kinds of information that they're seeking. And now I'll plug something of mine. So I have an article coming out in SMU that actually deals with, among other things, mind readers, but it's about encryption and whether we have a fourth, fifth, or common law right to robust, unbreakable encryption to the extent such a thing actually exists. And, because that's sort of the unsettled question coming out of San Bernardino is whether we actually have that right to encryption. What's the connection to mind reading? I can find your code with a mind reader. Well, so the idea is that right now, our biological systems render our thoughts largely inscrutable. And so what would happen if there was a mind reader? And I think probably on at least fifth and then the grounds, that would not, we wouldn't be allowed to use, to break our biological encryption process. So that's another great example because the doctrine as it's developing is that mind reading is bad, but I can force you to put your thumb on the phone to unlock it, because that's just a bio that's not testimonial in the fifth man. So that's another one of those things where I would have thought that besides being a better, almost all experts agree that biometrics would be better for encryption than passphrases. This is, I can change what I'm thinking. I can't change my thumb, not yet. Mark, I want to hear from you because you both seem to have some responses to Paul and Paul here, but also because you are in the business of representing the companies that are inventing the future, that are inventing science fiction. And for the various tests that we propose, whether it's an escalating level of intrusiveness and state power, whether it's particular types of data, where does that leave you as somebody who tries to represent providers who necessarily are coming into the picture prior to the prosecution and suppression phases? Right, so when I was at that last conversation, I was thinking every time we have a super warrant requirement of some sort of statutory, it's not been constitutionally based, except perhaps for the surgery case. So a sneak and peek warrant has to be done differently. This is a different method of collection, but it's statutory based, and so is the title three is statutory based but what you have to show. So I don't know that providers have a view on that they have a piece of data that's beyond the pale constitutionally, but providers are looking for statutory protections and invoking statutory protection more than they're invoking constitutional protections. And so just as a matter of practicality, it seems like we'll have more success with the CalECPA type approach to protect providers' interests than we will try to find it beyond the pale constitutional doctrine. So I wanna be clear, I was answering occasions where we would not allow the police to do it at all. So if the question was, should things be subjected to super warrant requirements and should we do it statutory or constitutionally, I would have had a very different answer. And this has been my hobby horse for- That's the only question I can answer. No, no, but for a number of years, I've argued that given the state of technology, I mean, this was a very carpenter-esque thing to say, but this was before carpenter, the judge, and I think this is David's first answer on this panel, the judges need to reach deeper into the toolkit of super warrant requirements and they have done it constitutionally twice. Let's not forget that Burger B. New York, which I teach to my students as the most important Fourth Amendment case that came out in 1967, far more important than cats, was all about what the constitution required when it came to assessing the fine details of the New York statute, the wiretap statute. And out of it, they basically gave a roadmap to Congress that ended up in Title III. And then you get Judge Posner in the 80s who said, you know, Title III applies to voice recording it doesn't apply to silent video, but I'm gonna squint and look at it sideways and think about my constitutional duty and export Title III to silent video. And so my argument to judges is let's unleash the hounds. Let's do this everywhere. Let's do this with forced encryption. Let's do this with government hacking. Let's do this when we're gonna do warrants like we did in the Playpen case where we send a virus to 8,000 computers around the globe. In every one of those cases, I want the judges to be empowered without waiting for Congress to say, you know what, this is not enough. All you have is probable cause. Come back when you have a time limit, when you have necessity, when you have minimization. It's gonna take a while to make the judges confident enough to do that, but that's something I've been pushing for a while. There's one more thing I wanna say in response to your question though, which is that providers aren't a little schizophrenic on some of this stuff, right? The beauty of providers always defending warrants for content is that this law prohibited them from doing anything with that content anyway. So it was a piece of data that they could treat as absolutely sacrosanct and then push back and long force it when they wanted it. When you develop a carpenter like theory, which is that so is this location data, well providers do things with the location data and arguing a pure, this should be beyond the pale makes it hard to do business. So they're not all going to jump on board depending on what they do with extending the protections to certain types of data if it means they can't use it in a way they want to. So it's not entirely, you know. It seems to be the other thread that's tricky that the justices both in the majority and in the sense they're struggling with in carpenter is how to apply the property theory here. We've been talking mostly about sort of the cats reasonable expectations that we've been talking mostly on privacy and the creation of privacy interests whether judicially or by statute, but is there grounds for expanding property interests through the positive sources of law that Justice Gorsuch says he wants to see such as more statutes. We're kind of seeing this with the GPR for example that the California Consumer Protection Act where it seems to be creating rights and information that is collected, generated, held for as business records by third parties. Is that something that's going to be workable? Will that help us to bolster or expand carpenter? David, you're shaking your head. Oh, I just think that the positive law approach to the Fourth Amendment is wrongheaded on a number for a number of different reasons. And it's been de facto rejected by the Supreme Court and I'm gonna flail on remembering the name of the case. But it's a Scalia opinion dealing with an individual who is posing as a law enforcement official. And in that opinion, Justice Scalia talks meaningfully about the fact that we're not gonna recognize state law grounded Fourth Amendment rights because that gives us a patchwork, a Fourth Amendment patchwork nationwide. So if we recognize this positive law theory of the Fourth Amendment, then Californians have different Fourth Amendment rights than we do sitting here in DC than I do when I go home to Maryland. And that just can't be the way that federal constitutional rights operate. They can't be dictated by state statutes nor can they be dictated by legislation because then what Congress, Giveth Congress can take it away in terms of our constitutional rights? Doesn't sound right to me. So I'll just, since everybody's plugged in something, if you come to the privacy and security form tomorrow, the panel I'm on is privacy is property, right? And to give you the short version, it's a great idea that is utterly un-operationalizable. For one thing, if we define property in some kind of constitutional way as Gorsuch might wanna do or as some of the others might wanna do, then it's gonna apply to all of Mark's clients as well in some form or another. And it's gonna be a really weird world in which we give you property rights in privacy as against only the government, but not as against Facebook or Yahoo or somebody like that. And then there's absolutely no way, at least that I can see right now, to scale it up so that your property preference, you can sell your property rights for X dollars and you'll sell this bundle, you won't sell that and she'll sell a different bundle of things that she wants for a different price, because she values her privacy much more or less and she just wants free stuff. So it's almost impossible to imagine the ready development of a commerce in privacy since we have no way of valuing it in monetized terms, your hedonic preference is totally different than mine. But the one thing we haven't talked about is what that raises is the issue of consent. I mean, the surgery would have been fine if the patient had consented to it and what the law enforcement creativity arguments these days are is like, well, the providers of whatever has got some form of consent and we can water ski behind that consent and say it's consent for the government and there's reasons not to do that impressing not to do that, but there are places in Warshack is one of them where the judge said, no, that's not sufficient consent for law enforcement to go in, but some of these consents will be a little more robust and a little more expansive and maybe, I don't know that there is anything you can put beyond the pale if there's consent, is that consent freely given and we get back to some of those questions? That's the doorbell case. That's the what? That's the doorbell case. I mean, that's also the question of what do people actually understand their consenting to, right? I always try to pull it back when I sit here because if I were to just walk out of here and go stop some people on the street and talk to them about these mind reading machines, they'd be like, man, this girl's crazy. I don't know where she came from. She clearly needs her medication. That would be the reaction. It would be a natural reaction, right? And so I was just talking to somebody about the fact I've got kids in elementary school. We show up at whatever is your, the day when you go and you meet the teacher and stuff and they're like, we use these apps to communicate with the class and one teacher uses one app and then the teacher at the other school uses the other app and then there's a third app for something else plus the app for baseball, so you know where the games are and the practice are and the app for soccer and they're like, well, they're like, would you read all the privacy process? I said no, because this is the only way I'm gonna hear from my kid's teacher and they're like, no, what's coming up and so what do you do at this point? Like, number one, who has time to read all of those and number two, like realistically, when everything is so tied in, then I think we're back to a place where it's consent meaningful and I think part of what happens is, by the way, state and local legislators are moving better, frankly, than the federal government and they're not moving well on anything these days, but there's also a question of things that are smaller or less controversial, like making these things understandable to people, like making the privacy policy understandable, making the kinds of things that are being collected understandable to people, right? Like in an easy digestible form, not one where somebody like me would pick through and be like, did you read this thing? It must mean that and I bet it's, that's not gonna fly and so I think there's, there has to be a place where we're just talking about what is digestible for the consumer, for the end user, right? In a way, before you start talking about what is consent and how consent could even figure into anything. So I'm reminded of a quip from Larry Lessig when he was talking about some libertarian where he said, you know, Ayn Rand is the kind of thing that most people encounter when they're in high school and you get really enamored in and you work your way out of it and you, for some reason, I've never worked your way out of it. I feel like that describes Neil Gorsuch in this property theory, which I'm totally, it'll be fascinating as a scholar to watch him struggle with it on a couple of opinions before he just gives up on it for the reasons that have been highlighted. I was, I was at the oral argument and I remember, I think it was Souter sits right next to him and I remember Souter saying, yeah, keep asking questions about your property theory. This is great. Not Souter, I'm sorry. I'm showing you tonight that my memory is failing now that I'm my lately. Winston V Lee was the name of the opinion. Anthony Kennedy wrote the event. Justice Souter was not on the court after he retired. But, but I remember it was, it was the other white guy. I remember the other white liberal, I remember Breyer was aching him on saying, this is, yeah, do more. And I imagine, I talked to my students the next day, I imagine he went right, Gorsuch went right back to chambers and he pointed at some poor unlucky clerk and he said, look, there's a Section 222 CP&I section. Go write that up, make that work. And the clerk came back repeatedly because if anyone in the room has ever dealt with CP&I, you know what a kind of terrible and vague and poorly written provision it is. And I'm sure the clerk gave him draft after draft saying, does this do it? Does this do it? And ultimately, you get this terrible opinion. It's actually a lovely opinion for the first two thirds. And you get this terrible ending where he basically says, well, I'm not gonna encounter CP&I because it was raised for the first time in front of us so they forfeited the argument, which of course was not necessary. I mean, there was tons of briefing about CP&I on both sides. But the CP&I part just wouldn't write. It just would not write. And that's the problem with Gorsuch's property is whatever positive law says property is. So I think he's just gonna abandon it. I also think, and I've heard a lot of people say this, this isn't original to me, that if there were only four votes in the majority, Gorsuch would have provided the fifth. Now, we'll never know how he would have reasoned his way to it, but he was not gonna be the reason that this rule ended up the opposite of what it did. So that's idle speculation, but I really do believe that we just got a kind of humor Gorsuch for a while. And at one point he's gonna pick a side and I hope he picks the right side. Is there grounds for continuing down like both? My problem with the consent and the property theories is that it seems like it holds less and less force in an era where we don't own records anymore. You license all of your files if you have them at all rather than streaming them. You ride in somebody else's car in an Uber and a Lyft. You have no idea if there is one of these black box recorders on board or not. So it seems like as consent expands into this realm of things that we don't even own or have any meaningful control over, are we gonna have to have a reimagining that might even play into this kind of, like fear of technology that you mentioned, where we have to reimagine this entirely on the basis of the technological advances in order to get back to that, I hate to invoke it, but the equilibrium adjustment theory that Orrin Kerr likes to talk about where consent becomes effectively meaningless in a world where, as the court said in this opinion, there becomes less and less voluntariness about participating in this technological mediation of every aspect of life. Consent has always been effectively meaningless. I feel more confident than I do about Carpenter in predicting that coerced consent will never be the sole ground. You know, you've got people flying on airplanes who say it's coerced consent to make them go through TSA. They lose every time. You've got people who are stopped in car stops who say it's coerced consent to open up their trunks because the guy says, okay, don't open up the trunk. We'll wait an hour till the drug dog gets here. You've got Hobbsian choices, Hobbsian choices. Everywhere that you encounter government. And it is probably the single most core fundamental way in which government manages its interactions with citizens in a way that drives you to allow them to do whatever it is they want to do. So I feel absolutely comfortable in the prediction that it will never be the case that that will be the only one of the factors that comes out of a case and somebody in a magistrate position says, well, you clicked through the app and there's a consent there but you didn't mean it because you had to have your Fitbit or your ring. That's just never gonna be the case. I can't follow which side it's coming on because involuntarily collected was one of the things in Carpenter. It was one of the things, it will never be the soul thing. It will never be the soul thing. It will never be the only factor pulled out because it's everywhere that you talk to the police or any government agency for that matter because they always give you this false choice. And if we actually meant what we thought about the involuntariness of consent, you would be allowed to drive away from a traffic stop. You would be allowed to refuse to go through TSA if you were willing, metal detector or fly anonymously. That was the Gilmore case. It's just not the case. But the question I think isn't whether involuntary consent is the soul thing. It's a question of whether consent which usually trumps everything and gets you out of some of these questions will do that when it is involuntary consent. And I think Carpenter says it won't. You could have said, well, they consented to give this information to the phone company and therefore we ignore everything else. And I don't think it's going- Only in circumstances I submit in which it is actually a part of your anatomy. Of course, if you really take that to be the case, that consent that's coerced by withholding of a service is invalid, then I can't be forced to get on an air. I can't be forced to consent to flying without showing identification. I can't be forced- Let's get back to facial recognition. You could say you consented have your face shown, you walked down the street. But I don't think that's going to rule the day that we all consented to facial recognition because we walked down the street. So I hear what you're saying that won't be possible. Well, as the database showed, CCTVs are uniformly, with one odd exception that looked like there were strange facts, been approved already. Now, granted, that's not CCTV linked to real-time facial recognition, but I guarantee you that all that CCTV is linked to post-event facial recognition, a la post-terrorism deconstruct forensic evidence of who left the bomb in the London underground. So there's never going to be a sense in which the London bomber is going to say, I didn't consent because it was coercive and he's going to be able to suppress the facial recognition technology that pulled him out of the 10,000 hours that they scanned within a half day in London. I mean, maybe I'm wrong, but I just can't imagine that any court, even the most liberal justices on this court, going in that direction and buying that as a rule. One is the stuff that you choose to go out and get because that makes your life convenient. Like I'm going to flip it and I'm going to count my steps and I'm going to do whatever. I'm going to put the ring on my door versus the things you can't get out of anymore. I was trying to explain this in my drive. They have a really old Subaru. They last forever. So I think it's going to be around for a while, but what happens when that car finally dies? Like how many old cars can you buy before you're just in the reality where your car has all these various systems, black boxes, GPS, everything else, you can't get another kind of car. You just can't. And so it's a different thing between saying, I really want to hook up my house with every kind of smart appliance and sit here on my phone and turn down my thermostat and turn on the oven and do whatever. Those are things that, there's a scale of where are you consenting or where are you choosing versus where do you just not have another option? I'm just not going to drive a car so that I'm going to take Uber, that I'm going to take, well, I mean, you could say that. Sure, I could live without flying. What does that mean? That means I have a whole lot of family. I'm not going to see unless I book a shipover seat. So that's one of those cases where you would think it was one of the essentials like this, but the flying public has no rights against TSA's warrantless searches. It's like you can drive places, at least if you're going continentally. I don't know about you, but I can't drive to London, right? But I said it depends if you're going continentally. It's for the majority of the flying public. They're not necessarily going overseas or having family. It's all different. There's not like one set of circumstances in that case. I think flying, they've just sort of made the bargain that it's too important to keep people safe, right? That that's just going to go across the board. But when it comes to other things, it's not as clear at this point. And I think that there can be incidents on both sides of the tipping point. Like I think there's always the really tragic circumstance at the tipping point and sometimes there's just a really huge breach that's the tipping point. Where there's suddenly like, well, how did they get all of these people's photos up online or how did they get something that sort of turns the imagination in a different way? And I think unrelated to these issues, we've seen those kind of external events shape probably how court decisions went, even if nobody says it out loud. And I think it can go both ways, even with these questions. I want to wrap up by just going straight down the line, one to two sentences each, you know, control yourselves. What's the next case we're going to see in front of the Supreme Court that deals with Carpenter? Oh, that wasn't the question I thought you were going to ask me. So my canned answer was going to be, it is a wonderful time to be a law professor writing in this area. And I think we're either going to see real time or tower dumps. And real time, I think we know where it's going to go. Tower dumps, who knows? So yeah, I don't have a lot of differences. This is not like the best wrap up answer, but to say, you know, hit up our website. We've got motions, we'll help you out. I think, so David said my answer, so I'll add a couple. Every single opinion cited war shock positively. So it seems like if you're willing to count noses, one holding that flows from this case is you need a warrant to read email. Now it's hard to get that to the Supreme Court because that's the practice, that's kind of how we've interpreted the Stewart Communications Act anyway. But it seems like there's a clear signal to the defense bar that if they can find a way to get to the court, they're going to get content. I mean content, I mean content. Right, but I mean, I think that's how you broaden it out, right, is the question of text messages or other kinds of messaging apps. I think that'll be an extension of Carpenter before too long, yeah. I'm going to take it in a different direction and say I think it's going to be a facial recognition slash CCTV case. Not CCTV pure, but linking that to some form of technological identification. It's going to be a search against the DNA databases. I think the government just came out with a new policy, says that the federal government, you're only going to search the DNA databases if the terms of service say, this is their interim policy, terms of service say it's okay for law enforcement use, which not that many say, but states don't have that prudential restriction. I think we're going to see, is it a search to compare a string of DNA against all the DNA in the databases that's searching everybody's DNA, or is that something else? So I think it's DNA. We'll see who's right and loser has to buy the other's dinner is what I'm going to say. Thank you to all of our panelists for joining us this evening. I want to wrap up and give people who need to go and see the Nats game an opportunity to get out of here and then we'll open it up for anybody who's still left after that, to ask some questions of our panelists. Sorry, thank you all very much. Go Nats. Next, all right, go Nats. I guess this is a small room, we'll just shout loudly if anybody has a question. So the two answers to that question, I think, and I'll let Paul pick it up, but the two answers to that question, one, so the fourth amendment just doesn't cover private parties, except one of the huge gaps and the majority opinion in Carpenter is who conducted the search and when was the search? What exactly was the search? And that highlights a requirement for any fourth amendment challenge, which is that a state agent has to have conducted the search. And that is just something that is completely missing, but what almost has to be true in Carpenter is that the phone company was a state agent when it was gathering that cell site location information because they knew that government agents are interested in that information, they knew that government agents, oh, Mark left, routinely ask for that information and electronic companies know that Google knows that the government asked for this kind of user information tens of thousands of times a year. And so for purposes of the fourth amendment, Amazon, if it's getting hit with government requests for that data, arguably is a government agent subject to fourth amendment constraints. It's funny, I don't read it that way at all. I read it like they did more violence to the old state action doctrine in the fourth amendment, which is maybe why you don't want to read it that way. The search was the moment they delivered the data pursuant to the deorder. That was the traditional state action, that was the handing over the information, and then they've got this weird retrospective examination of the data. Remember, it wasn't, they didn't probe why the phone company did it the way they did it. They just said, we're gonna study the database. I mean, they said that more than once. And so I agree they completely upended their approach to state action, but I think they just almost threw it out. And they just said, it's not state action until the government asks, but right when they ask, we in this very odd way look at the result of lots of private choices. So again, maybe it's angels on the head of the pin, which way they go, but they did something weird. I agree with you there. The optimism I had on this panel would have been completely the opposite if this were a panel about Amazon's power, right? Where we don't have a carpenter, and I don't see any prospect of a carpenter, and I don't think the CCPA or the GDPR or anything else that's looming does anything that we need to kind of recalibrate our relationship to corporations. Oh yeah. I think the question, the tools and devices that Amazon is developing specifically for law enforcement and offering to them for free, and then how that starts to bleed into the other information they're collecting and what they do with it. I am really skeptical about Amazon. I don't think that they're really like segregating their databases and saying like, oh hey, law enforcement recreated this tool for you to use, this space recognition, this other kind of data monitoring tools, et cetera, et cetera, but we're keeping it totally separate apart from this massive amount of information we're collecting on people. Like I'm skeptical that that's the case. And so I think that those are the places that sort of separation starts to blend, I guess, or bleed. Questions? Yeah. Hey, my name is Bruce Farmer, I work for Professor Gray. You mentioned something that I found very curious about. So I think I'm only willing to go as far as upon information and belief. It is happening in several cities in the United States where it appears that law enforcement officers are routinely seizing phones from gunshot victims, yes, and searching them. Is this like an exonancy? Justification? The small end of direct experience I have with actual justifications is that it never occurred to them that this was something that was covered by the Fourth Amendment. But now it's become like a big, it's part of their... Yeah, how are they getting, how is it, what was my nickname? And so I'm not sure that they are, but they're not giving the phones back. And at least on some occasions they're just putting somebody's thumb on the phone. They're just putting somebody's thumb on the phone, yeah. Well, but that's... So there's a pretty strong consensus that compelling somebody to decrypt their phone with their thumbprint is not a Fifth Amendment event because there's no expressive content to that action. And so that's... But there's been some reaction there, too. Yeah, but part of the point is that law enforcement officers, even in pretty well-settled areas of the Fourth Amendment, don't necessarily feel constrained, particularly if they're not worried about the admissibility that evidence in the future. So they wanna try to get into these gang networks and identify potential future shooters, potential future victims, and they're not much concerned about whether evidence might be suppressed later on. And we saw that also with cell-site simulators where government agents were freely using cell-site simulators, not ever concerned about the Fourth Amendment because they were just not gonna use that evidence itself in the future. They were gonna use it to develop lines of investigation and then they would worry about the Fourth Amendment once they got to the point of gathering evidence that they wanted to be admissible at trial. So let's go back to your point and we'll probably also come on this point about where suppression is really the only effective remedy that we have in order to try and provide some slap on the wrist to keep police officers from doing these kinds of warrantless searches to the degree that there's never going to be, that suppression is not gonna come up or there's not gonna be standing at challenge it because they're not doing it in order to get admissible evidence in this particular person's case. There's not gonna be a whole lot that we can do about that in that situation. And this did also come up, Steve was talking about the black box recorder cases where we also have seen police officers at least in the Georgia case just thinking that there's absolutely no problem with going with no warrant at all, getting into somebody's car which entails the property interest and just pulling and dumping the contents of the data off the black box recorder, the event data recorder from those boxes as well. So it is an interesting illustration of the creativity that Paul was talking about, life and needing to think actually creatively about what the legal ramifications are for using the data that is out there. Basically, if you collect it, they will come. Whether they get a warrant or not, it's sort of for the Supreme Court to tell 15 years hence. We have copies of the champion out there. We did an issue on a lot of these sort of digital criminal law questions. So it's got articles, including one on using your privacy policies as a way of creating a property rights in your data and face recognition of other things. But they're out there. Normally you have to be a member to get the champion so you can pick up your copy for free. I wanna wrap up. Make sure we end on time. Get everybody out of here. But one more thank you to our panelists. Thank you for coming out and talking about this tonight.