Who Holds the Hammer? A Private Ordering Framework as the Key to Carpenter’s Privacy Puzzle

Green, Matthew

Journal: Northwestern Journal of Technology and Intellectual Property

Volume: 22

First Page: 361

Year: 2025

Bluebook Citation: 22 NW. J. TECH. & INTELL. PROP. 361 (2025)

Author: Matthew W. Jr Green: all 3 publications


Abstract

This Note builds on the Supreme Court’s reasoning in Carpenter v. United States, suggesting that its technology-specific approach may be insufficiently elastic to address the complexities of modern data privacy. Through an analysis of several exemplars, this Note advocates for a private ordering framework—where data collectors respond to consumer expectations of privacy through self-regulating practices—as a more adaptive and effective means of safeguarding digital privacy. This approach preserves the third-party doctrine while reducing the burden on courts to draw technological boundaries in a rapidly evolving digital environment.

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