The Competitive Enterprise Institute is disappointed that the Supreme Court has refused to consider if the government can search what websites a person accesses online without a warrant in Ulbricht v. United States.
In Carpenter v. United States the court last week recognized that people have a Fourth Amendment right in the highly private information concerning their physical location that is stored with a third party, like a cell phone service provider. But this is only one kind of private information people store with third parties. Another is their internet traffic IP addresses.
CEI Attorney Devin Watkins had the following to say about the denial of consideration:
Carpenter used the Katz reasonable expectation of privacy test. While that should protect internet traffic, it is such a vague standard that it allows judges to avoid the Fourth Amendment warrant requirements. Instead, the proper application of the Fourth Amendment focuses on property rights, as CEI’s petition in Carpenter and Ulbricht sought.
CEI had filed an amicus brief asking the Court to reconsider Ulbricht and apply the Fourth Amendment to internet traffic.
In the Carpenter case, Justice Gorsuch’s opinion not only recognized the property rights at issue, but that a third party can have possession of property that you own. “This is the proper way of applying the Fourth Amendment, to apply a warrant requirement to the modern internet era of digital property,” Watkins explained.
Helpfully, a previous court ruling, United States v. Jones (2012), still leaves this as an option for lower courts to consider in a future case.