SCOTUS Weighs ‘Geofence Warrants’ and the Future of Digital Privacy

Greetings and welcome to the latest edition of the Injustice System newsletter. It was a big day yesterday at the U.S. Supreme Court for Fourth Amendment buffs, as the justices heard nearly two-and-a-half hours of oral arguments in a case that pits digital privacy and the right to be free from unreasonable search and seizure against a cutting-edge technology that can tell law enforcement officials about the unique location histories of millions of cell phone users.

At issue in Chatrie v. United States is a law enforcement tool known as a “geofence warrant.” In this case, the police told Google to search the location histories of every one of its users in order to determine which users were present in the vicinity of a bank robbery.

Adam Unikowsky, the lawyer for Okello Chatrie, whose conviction stemmed from that geofence warrant, told the justices that the government’s tactics should be viewed as an illegal “general warrant,” the sort of all-compassing search that the Fourth Amendment was originally written to prevent. “There was not probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime,” he argued.

By contrast, Deputy Solicitor General Eric Feigin told the justices that Chatrie’s position, if adopted, would result in an “unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain, and use.”

Judging by their questions and statements during yesterday’s arguments, a number of justices may share the government’s concerns about ruling too broadly in Chatrie’s favor. For example, Justice Ketanji Brown Jackson told Chatrie’s lawyer that, “I see you as making maximalist arguments about this that I’m trying to understand if they’re necessary to get to the point that you want to go.” “Setting aside your general warrant point,” Jackson pressed him, why shouldn’t the standard be that a presiding judge at the outset simply focuses on whether the initial geofence warrant was reasonable? In other words, why should the Supreme Court make this into a bigger Fourth Amendment dispute than it needs to be?

But the federal government’s “maximalist” position also came under plenty of judicial fire. For instance, Chief Justice John Roberts asked the deputy solicitor, “what’s to prevent the government from using this [tool] to find out the identities of everybody at a particular church, a particular political organization?”

“I don’t think there’s any kind of categorical protection around something like a church,” Feigin said. That’s not exactly what you want to hear from a government lawyer if you happen to care about robust digital privacy rights.

“So you don’t think there’s any constitutional protection from such organizations to be subject to focused surveillance that would cover everybody in a particular location?” Roberts retorted, with a note of what sounded like disapproval in his voice.

Justice Neil Gorsuch interjected with his own clearly disapproving summary of Feigin’s position. In your view, Gorsuch told the deputy solicitor general, “you don’t think it’s a Fourth Amendment search at all. You don’t need a warrant.” And if the government wants “to determine everybody who is at a church, or a political rally, or the abortion clinic, or anything else like that, we [the government] can do that as long as we can get Google to comply. Oh, and we might have a few tools besides warrants to get social media companies to comply with governmental requests.”

“So I do think that effectively is our answer,” Feigin told Gorsuch. Once again, not a pleasant thing to hear from the government if you happen to be a civil libertarian.

The exact outcome of this case is probably too close to predict based on the oral arguments. Hopefully, the Supreme Court will, at the very least, reject the lamentable view that geofence warrants should not count as a search for Fourth Amendment purposes. But we’ll have to wait and see about that.