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Could Justice Gorsuch’s Libertarian Fourth Amendment Be the Future of Digital Privacy? A “Moderate” Contracts Approach to Protecting Defendants After Carpenter

Chris Machold

Vol. 53

January 2020

Page 1643

This Note examines the most recent challenge to both the Katz v. United States “reasonable expectations” test and the third-party doctrine lodged by Justice Neil Gorsuch in a solitary dissent to the majority opinion in Carpenter v. United States. Justice Gorsuch argued for a rejection of both Katz and the third-party doctrine, which he alleged was its ill-conceived progeny. He posited that a renewed emphasis on property rights and concepts provides a better basis for protecting defendants’ rights against government searches of new technologies and digital assets. As constructed, the argument rests on both originalist, history-centric grounds and practical, policy-focused rationales. Justice Gorsuch’s approach appears uniquely situated to appeal both to the conservative end of the Court, which values tradition, and the progressive end of the Court, which is particularly sensitive to the effect of advancing technology on government searches. By its nature, this Note must consider present political and jurisprudential realities. With the retirement of Justice Anthony M. Kennedy (who emphasized the importance of not limiting law enforcement in his Carpenter dissent), the ideological balance of the Court is particularly susceptible to shifts in values and doctrine. As legal commentators continue to grapple with the continued legacy of the “Roberts Court,” its volatile center has potential to shrink around the Court’s newest Justices: Neil Gorsuch and Brett Kavanaugh. Given this precarious doctrinal reality, Justice Gorsuch’s lone jurisprudential position in Carpenter could swiftly gain a sort of “moderate” appeal.

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