Supreme Court Considers Constitutionality of ‘Geofence Warrants’ in Digital Age

The Supreme Court will decide the Fourth Amendment’s protection from “unreasonable searches and seizures” in the digital age after hearing nearly two hours of arguments over warrants accessing geolocation data.The case heard Monday, Chatrie v. United States, centers on the constitutionality of executing a warrant to retrieve data captured by Google then used to find and convict a bank robber.Antennas in mobile phones continuously transmit data to cell towers or satellites to access the internet and other services. Geofencing technology that triangulates an individual’s location is used for everything from advertising to GPS directions.A geofence warrant allows law enforcement to obtain from the service provider the identities of users who were in the vicinity of a particular location at a particular time. Its use by law enforcement is becoming increasingly common but critics such as the American Civil Liberties Union call the warrants “dragnets” as they sometimes involve collecting data from thousands of people. Warrants are also commonly issued without police demonstrating a reason to believe that any of the people carrying a device inside a geofence were involved in a crime. In the case now before the justices, investigators used a geofence warrant to force Google to turn over anonymized location data for every device that had been within 150 meters of a Midlothian, Virginia, credit union within an hour of a 2019 robbery. That data showed 19 users inside the geofence during that timeframe.Law enforcement then sought — without an additional warrant — information about the movements of those 19 devices for an hour before and after the crime, including tracking movements outside of the geofence. Law enforcement then requested — again without a new warrant — de-anonymized subscriber information for three devices. One of those devices belonged to Okello Chatrie. He was convicted of armed robbery based on the location evidence.Chatrie claimed that the government violated his Fourth Amendment rights in obtaining his location data. A district court agreed that the warrant didn’t have the kind of probable cause the Fourth Amendment requires but it allowed the evidence, saying law enforcement had acted in good faith. The U.S. Court of Appeals for the Fourth Circuit affirmed the ruling.Google warns in its terms of service agreement that their data may be given to the government as part of an investigation. Several justices at Monday’s hearing questioned whether users give up their right when they agree to the terms of service. The solicitor general, John Sauer, argued that Chatrie had voluntarily shared his location data and had no expectation of privacy.Chief Justice John Roberts suggested that if someone didn’t want the government to have the data it is simple enough to turn off sharing it on the phone. The attorney for Chatrie, Adam Unikowsky, replied that people should not have to turn off features on their phones to avoid government surveillance.Justice Neil Gorsuch brought up concerns about how similar searches would apply to other electronic data such as emails. Justice Samuel Alito, however, questioned why they were even hearing the case since Google stopped storing location data on its own servers making the issue moot. Location data now remains on the user’s own device.“I’m struggling to understand why we are hearing this case other than the fact that at least four of us voted to take it,” Justice Alito said to laughter.“I think this is an important subject because lots of providers store data, and not just Google,” Mr. Unikowsky replied. “I think a lot of people think this case will have implications beyond these particular facts.”Nearly two dozen groups filed briefs in support of Chatrie’s case. The Cato Institute’s brief argued that geofence warrants authorize “precisely the sort of exploratory rummaging the Fourth Amendment sought to prohibit.”Microsoft’s brief asked the justices to affirm that the Fourth Amendment’s safeguards are not “rendered toothless by the realities of the modern digital age.”The justices are expected to release a decision in the case by early July.

Supreme Court Considers Constitutionality of ‘Geofence Warrants’ in Digital Age

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