The Supreme Court will hear oral argument in Carpenter v. United States, the latest opportunity to revisit the Third-Party Doctrine that served as a facile diversion when created, and has undermined any potential for digital privacy in the future. But it has certainly made life easier when it comes to collecting evidence.

How hard should it be for the police to get hold of reams of data showing every place you’ve been for months?

In 2013, Timothy Carpenter was convicted of being the ringleader behind a series of armed robberies of cellphone stores in and around Detroit, and was sentenced to almost 116 years in prison. His conviction was secured in part based on 127 days of location data that his cellphone service provider turned over to the police, showing that his phone had been in the vicinity of several of the robberies.

Carpenter “shared” his cellphone data with his service provider in the sense that a cellphone won’t work otherwise. Whether he knew it or not, and whether any purported lack of knowledge would be deemed objectively reasonable, as Katz’s “reasonable expectation of privacy” might suggest, doesn’t matter. If it’s digital, it’s in a third-party’s hands, somehow, somewhere. Which means it’s the government’s for the asking.

The police got those phone records without a warrant, which the Fourth Amendment generally requires, and which would have forced them to show they had probable cause to believe that Mr. Carpenter had committed a crime. Instead they relied on a federal law with a lower standard: “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation.”

There was once a time when we spoke of the Fourth Amendment prohibiting a warrantless search as per se unreasonable, unless a specific exception applied. Now, it’s watered down to “generally requires.”

Mr. Carpenter appealed his conviction as violating the Fourth Amendment’s ban on unreasonable searches and seizures. He argues that the police should have to get warrants to collect long-term location data, which reveal a huge amount of private information. As a federal judge in a separate case put it, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

The death of privacy? Not that we haven’t willingly given it away for a handful of likes on Facebook like magic beans, but still, that’s our choice, not the government’s.The rule out of Smith v. Maryland was premised on the very limited trap and trace device, the pen register, not a tiny computer that could give away your every secret. But it’s the rule. For now.

In its editorial, the New York Times argues that it’s time to do something about the Third-Party Doctrine, an anachronism, though it curiously doesn’t call for its brutal death.

The answer is to revise it, if not throw it out altogether.

The harder question is: What rules should govern the relationship between law enforcement and the public, and who should write them? Even if the Supreme Court decides, as it ought to, that the police needed a warrant to vacuum up four months of Mr. Carpenter’s whereabouts, it can’t resolve more fine-grained questions about how to balance personal privacy against public safety.

This is an astounding position, even if its undercurrent is hidden behind some serious shade. There are, and have always been, “rules” to govern the relationship. It’s called the Fourth Amendment to the Constitution, and it says get a damn warrant. Just so it’s not completely unclear, it’s not as if this requires a lot of police heavy lifting. It’s more like, “Hey, Judge Skippy, I need a warrant for this guy my snitch says is a bad dude.” “Okay then, granted” sayeth the Court.

Yet this is apparently too much for the Times, and it’s relied-upon expert source.

That’s a job for lawmakers, said Barry Friedman, a law professor at New York University and the author of a book about involving the public in creating law enforcement policies: “How much data can you get? How long can you hold it? Can you share it with other agencies? Do people have a right to know that they’re in it? Does it have to be purged after the investigation is over?

“The Supreme Court doesn’t have a scalpel to write those rules, but that’s what is needed,” Mr. Friedman said.

Behind this subterfuge is the fact that this “scalpel” is a way of circumventing the warrant clause. Rather than call for the death of the Third-Party Doctrine, the ask is for new subconstitutional rules to allow cops to search and seize without probable cause, without a warrant, because “that’s what is needed.” But here’s where dots get connected. Nancy Parker’s comment to the editorial gets a Times thumbs up:

Really? A criminal has the ‘right’ to commit his/her crimes in privacy?
To flaunt the rules of society on the one hand, and demand their protections on the other?
If you consciously decide to give up the constraints of a lawful life, you give up your constitutional protections for your actions.
My right to life, liberty and the pursuit of happiness – which your actions infringe upon, trump your “rights” to perpetuate crime every day.

Believe the victim has its obvious consequences at the top level of women’s feelings, but it is already sliding down the slope to other criminals, to other victims. The most woke among us, New York Times readers, realize that once we break away from rights as protected by the Constitution, reject Blackstone’s Ratio as a foundational premise of our jurisprudence, why should any criminal have a “right” to commit crime in privacy?

Sure, this puts the “criminal” ahead of the conviction, before the proof, but then, isn’t that exactly what we’re doing for every offense, real or imagined, against women? And if it’s true for women, why wouldn’t it be true for every victim? Are you a victim blamer?

While the elites dissect the finer points of the law, the common store owner who has been robbed gets no sympathy.

Finer points of law, like evidence and constitutional rights, just get in the way of sympathy. Have you no sympathy?

Update: Stephen Sachs, who argued Smith v. Maryland as attorney general writes at WaPo:

I argued and won Smith v. Maryland when I was Maryland’s attorney general. I believe it was correctly decided. But I also believe it has long since outlived its suitability as precedent.

Of course it’s outlived its usefulness, but the decision created a rule as a cheap means of circumventing the Fourth Amendment at the time. It was never a sound rule.

When the Supreme Court decided Smith, in the pre-dawn of the digital age, we didn’t know about the Internet, smartphones, cloud computing, Facebook or Twitter. No one involved in the case could foresee the digital revolution that was to come.

Why do they always have the epiphany after they’ve long since left office?