Functional Equivalence and Residual Rights post-Carpenter: Framing a Test Consistent with Precedent and Original Meaning

Donohue, Professor of Law at Georgetown Law, analyzes the Court’s holding and the associated dissents in Carpenter. The Article draws attention to the myriad questions raised by the CSLI / third party exception, advocating in its place a property-based approach that extends the rule of functional equivalence that characterizes home and border searches to digital papers. It suggests a “but for” analysis to ascertain ownership, turning to bailment, as Justice Gorsuch did in his dissent, to lay out a way to think about third party records moving forward.