Kerr rejects Carpenter's privacy holding but says a warrant rule largely follows if that holding is accepted
Orin KerrLaw professor and Fourth Amendment scholar
Kerr rejects Carpenter's privacy holding but says a warrant rule largely follows if that holding is accepted.
“I think Carpenter’s search holding is wrong. In my view, users don’t have Fourth Amendment rights in their historical cell-site records. But if you accept that erroneous holding as correct, and you then need to figure out what the reasonableness standard is for compelling access, I think something like the majority’s rule, in which the target is still ultimately protected by the same protections that would apply if the information were locally stored, is probably right.”
Analysis
Where this statement fits
Carpenter: Roberts and Kennedy split over police access to cellphone location records
In June 2018, the Supreme Court ruled five to four that obtaining Timothy Carpenter's historical cellphone location records was a search and generally required a warrant. Chief Justice John Roberts stressed the reach of location surveillance. Justice Anthony Kennedy dissented, arguing that the government obtained the carriers' business records rather than searching Carpenter's property.
Source and context
Analysis
About this source
Kerr analyzes whether Carpenter changes the law governing subpoenas.
Archived copy (opens in a new tab)Before the quotation
Kerr examines Carpenter's consequences for subpoenas.
After the quotation
He concludes that the subpoena holding largely follows from the search holding rather than creating a separate doctrinal break.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
Relative to warrantless acquisition of historical location records, Kerr rejects recognizing a Fourth Amendment interest but conditionally supports the majority's protection once that premise is accepted.
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Anthony Kennedy defends obtaining carrier business records
“The Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party. United States v. Miller, 425 U. S. 435 (1976); Smith v. Maryland, 442 U. S. 735 (1979). This is true even when the records contain personal and sensitive information.”Read statement
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The Dispute Index. "Kerr rejects Carpenter's privacy holding but says a warrant rule largely follows if that holding is accepted". First published: 2026-10-24. Last updated: 2026-10-24. https://disputeindex.com/events/6631-kerr-rejects-carpenter-s-privacy-holding-but-says