Profile picture
Orin Kerr @OrinKerr
, 5 tweets, 2 min read Read on Twitter
I suspect one reason the Supreme Court did not cite anything for the first sentence in this paragraph of Carpenter is that it was invented by Carpenter's brief. Which makes the 2nd sentence kind of amusing: As Chief knows, Riley's discussion has nothing to do w/ what is a search.
2/ The Court has in the past referred to "diminished" expectations of privacy as a reason why a search might be reasonable without a warrant. In the cost/benefit of reasonableness, the thinking runs, a strong govt need for search outweighs diminished expectations of privacy.
3/ By claiming (wrongly) that the 3PD was about "diminished" expectations of privacy -- rather that the elimination of them -- Carpenter moves the concept over to a different doctrinal box of what is a search and then requires a warrant even to the "diminished" expectation.
4/ Probably reads well to someone not familiar with the cases, but it's kind of strange twist in the doctrine. On the other hand, the old cases gave Carpenter relatively little to go on, so no surprise they had to get creative and repurpose old doctrines to get there.
5/ And to be fair, some lower court cases did talk about the transmission of contents of communications such as e-mails "diminishing" expectations of privacy in them. It didn't make much sense when they used that language, but some cases did use it. SCOTUS didn't, though.
Missing some Tweet in this thread?
You can try to force a refresh.

Like this thread? Get email updates or save it to PDF!

Subscribe to Orin Kerr
Profile picture

Get real-time email alerts when new unrolls are available from this author!

This content may be removed anytime!

Twitter may remove this content at anytime, convert it as a PDF, save and print for later use!

Try unrolling a thread yourself!

how to unroll video

1) Follow Thread Reader App on Twitter so you can easily mention us!

2) Go to a Twitter thread (series of Tweets by the same owner) and mention us with a keyword "unroll" @threadreaderapp unroll

You can practice here first or read more on our help page!

Did Thread Reader help you today?

Support us! We are indie developers!


This site is made by just three indie developers on a laptop doing marketing, support and development! Read more about the story.

Become a Premium Member and get exclusive features!

Premium member ($3.00/month or $30.00/year)

Too expensive? Make a small donation by buying us coffee ($5) or help with server cost ($10)

Donate via Paypal Become our Patreon

Thank you for your support!