Beyond Carpenter v U.S.: Broadening Pathways for protection of the Right to Privacy

The U.S. Supreme Court recently decided the case of Carpenter v United States? In short, the Court found that the government's acquisition of historical cell phone location records violated the right to privacy. This decision is significant as (a) the Court recognised the intrusiveness of accessing historical location data held by cell phone companies and (b) established an important precedent that a search warrant is required to access such records. Although the scope of the Carpenter decision was narrow, the case has been celebrated as a ground-breaking victory for the digital age, and other commentators have analysed how the reasoning of the Court has potentially broader implications for privacy in the U.S? In the context of protection of the right to privacy in the digital age, it will be worth watching closely the cases building on Carpenter. This paper examines how the Carpenter case reveals a fundamental difficulty in how the Court and other judicial bodies confront right to privacy cases in the digital age. The digital landscape involves complex connections between data, devices and other infrastructure, that are not necessarily bounded by borders. This big picture view is necessary for appreciation of the full implications on the right to privacy, which extend beyond this case and the U.S. context. Commentary on the case can enrich the value of the decision by contextualising it in the wider digital context, and locating some underlying issues that might present challenges for protection of the right to privacy more broadly.