In the 2010s, the Supreme Court decided a trio of cases—United States v. Jones, Riley v. California, and United States v. Carpenter. These decisions were widely hailed as landmark cases which would revolutionize Fourth Amendment jurisprudence and bring long overdue reform to an area of law that has failed to keep pace with technological advances. A decade later, the actual impact of these cases has become clear—and it is surprisingly minimal. Jones claimed to redefine what constitutes a search, but the test it resurrected is infrequently cited and has rarely affected the outcome of a case in the ensuing decade. Jones and Carpenter affirmed the mosaic theory as a potential method for countering big data searches and panoptic surveillance, but courts have not applied this theory beyond the narrow fact patterns of those cases. Carpenter at last addressed the dissonance between the decades-old third-party doctrine and the modern world in which corporations hold all of our data, but over eleven years after the case was decided, the third party doctrine is still alive and well. And Riley presented the Court with an opportunity to both bring consistency to the search incident to lawful arrest doctrine and to establish new Fourth Amendment standards for digital devices, but in practice it has had almost no effect on how police conduct searches.
This article analyzes the failure of each of these cases to make a significant impact on Fourth Amendment doctrine and then explores the reasons why the Court has been unable to take the bold steps necessary to address the rapidly evolving problems created by new surveillance technologies. It concludes that because of this inability, the focus of reformers should not be the federal courts or Congress, but rather state and local governments, as well as private companies, since those are the institutions that are now taking the lead in regulating technology in the digital era.
