I recently posted a new draft article, “Implementing Carpenter,” on the Supreme Court's blockbuster June 2018 decision in Carpenter v. United States.
Orin Kerr is the Frances R. and John J. Duggan Distinguished Professor of Law at the University of Southern California Gould School of Law. He is a nationally recognized scholar of criminal procedure and computer crime law. Before becoming a law professor, Kerr was a trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice and a Special Assistant U.S. Attorney in the Eastern District of Virginia. He is a former law clerk for Justice Anthony M. Kennedy of the U.S. Supreme Court and Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit.
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A recurring question in law-of-digital-evidence investigations is how the Fifth Amendment applies to acts of compelled decryption. In these cases, the government gets an order directing a person to enter a password to unlock a device. The subject of the order then pleads the Fifth. How should a court rule? I wanted to flag two of my recent writings on this issue.
The Fifth Circuit has handed down a fascinating computer search case in United States v. Reddick. Here's the question: If a private company runs a hash of a file and compares the hash to those of known images of child pornography, and it finds a match to a known image and forwards on the file to the government, is it a “search” for the government to then open the file to confirm it is child pornography?
Public Utility's Recording of Home Energy Consumption Every 15 Minutes Is a 'Search,' Seventh Circuit Rules
In a fascinating decision, Naperville Smart Meter Awareness v. City of Naperville, the Seventh Circuit has held that a public utility commits a "search" of a home when it records every 15 minutes how much electricity the utility is providing the home, at least until the smart readers that enable this data collection come into general public use.
As some readers know, I wrote a law school casebook on computer crime law. The first edition came out in 2006, and it has been updated over time: The fourth edition came out in January 2018. If you’re interested in checking out the casebook, its first 40 pages—which includes the introduction, the table of contents and the first 30 pages of text—is available for download here on SSRN.
Judge Brett Kavanaugh’s views of the Fourth Amendment have drawn significant interest following his recent nomination to the Supreme Court. This post takes a close look at Kavanaugh’s key Fourth Amendment opinions. It does so with an eye to guessing how he might rule in search and seizure cases if he is confirmed to the Supreme Court. The Supreme Court has a large Fourth Amendment docket. How might a Justice Kavanaugh approach those cases?
The Supreme Court’s recent decision in Carpenter v. United States raises lots of fascinating and novel Fourth Amendment questions. In this post I want to focus on one interesting and important set of questions: When does a Carpenter search start, and when does it stop? I don’t have a lot of answers, but I think the questions are important to consider. This post will explore the questions and will end with a set of hypotheticals that I think are worth pondering.