In October 2018, a group of pro se individual plaintiffs in New York sought to enjoin implementation of the new Presidential Alert system, which allows the Federal Emergency Management Agency to convey emergency bulletins through mobile phones. The system works by sending emergency alerts to cell phone carriers, who then use their cell phone towers to push the alerts to their customers. Nicholas v. Trump, No. 1:18-cv-08828 (S.D.N.Y. filed Sept. 26, 2018). The plaintiffs based their argument for an injunction on the U.S. Supreme Court’s June decision in Carpenter v. United States, No. 16-402, 585 U.S. ____ (2018), arguing that the Presidential Alert allows the government to trespass on their devices in violation of their Fourth Amendment right to privacy. As those of us who received the October test alert know, the plaintiffs in Nicholas did not prevail on their initial Carpenter challenge. This puts them in good company with many criminal defendants who have attempted to suppress evidence under Carpenter. Although it is too soon to know definitively how Carpenter will be interpreted by the courts, thus far it has not been the seismic shift many predicted.
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