The U.S.
Supreme Court has recently ruled that law enforcement searches for the location
history of cellphones near crime scenes are covered by the Fourth Amendment,
requiring warrants to obtain the data, reported the Pennsylvania Capital-Star.
But the
high court left unsettled when searches for the information are reasonable —
likely meaning the justices will eventually weigh in again on the privacy
rights of Americans in the electronic era.
In a 6-3 decision, the Supreme Court ruled that police
officers conducted a search for the purposes of the Fourth Amendment when they
obtained cellphone location history data during an investigation into a bank
robbery in Virginia. The amendment protects against unreasonable searches and
seizures by the government.
“An
individual has a reasonable expectation of privacy in records about his cell
phone’s location, and police intrude on that constitutionally protected
interest when they demand the information — even though for only a limited
time, and from a third-party tech company,” Justice Elena Kagan wrote in the
majority opinion.
Kagan was
joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett
Kavanaugh and Kentanji Brown Jackson. Justice Neil Gorsuch concurred in the
judgment but did not join the majority opinion.
Justice
Samuel Alito dissented, joined by Justices Clarence Thomas and Amy Coney
Barrett.
States ask
warrants be upheld
Over the
past two decades, geofence warrants have become a major tool of law
enforcement. At a basic level, they allow police to identify phones within a
geographic area for a certain period of time. The data can be tremendously
valuable to investigators, offering a way to develop suspects in crimes where
their identities aren’t otherwise known.
Civil
liberties advocates warned that geofence warrants ensnare people in digital
dragnets, handing the government data on anyone who happens to be in the wrong
place at the wrong time. They argued that accessing data on anyone within a
certain area — the geofence — amounts to a general warrant prohibited by the
Constitution.
A broad
bipartisan coalition of states urged the justices to uphold the warrants.
Thirty-one states and the District of Columbia filed a brief with the court
arguing that geofence warrants can be more precise than many traditional
investigative methods when supported by probable cause and appropriately
tailored. In the brief, they urged the justices not to prohibit geofence
warrants altogether.
Geofence
warrants can generate critical leads when the perpetrators of crimes are
otherwise unknown, they wrote. When suspects are unknown but the suspected
wrongdoing is linked to a specific place and time, location data provides one
of the narrowest available tools for finding leads, the brief argues.
Credit
union robbery in Virginia
The case centered on a 2019 robbery of a federal credit
union in Midlothian, Virginia. Okello Chatrie was convicted of armed robbery
after surveillance footage showed the robber using a cellphone. A detective
then obtained a geofence warrant directed at Google for devices within 150
meters of the credit union within an hour of the robbery.
Google
initially provided anonymized data in response to the warrant. The detective
then requested and received additional location data on nine users. Finally,
the detective received de-anonymized information on three users, without
obtaining an additional warrant.
While
Google has since changed the way it stores location history data to limit
geofence warrants, other apps and tech firms collect the data. Lawyers for
Chatrie argued that geofence warrants open the door to the authorities
requesting information on everyone at a sensitive location — perhaps an
abortion clinic or a political convention — at a particular time.
The
records serve as a “personal journal of a user’s movements,” Kagan wrote.
Location history resembles other private materials like emails, documents,
photos and calendars that, even if stored on Google’s servers, users reasonably
view as their own, she wrote. Users, in turn, expect the data to be shielded
from the “inquisitive eyes” of the government, Kagan wrote.
‘Reasonable’
question unanswered
But Kagan
and the court’s majority didn’t wade into whether the search of Chatrie was
reasonable under the Fourth Amendment. While the warrant in the case was an
uncommon, multi-step warrant, Kagan wrote, the lower appeals court found that a
search did not occur, so it did not decide whether the warrant was reasonable.
“We are,
as we have said many times before, ‘a court of review, not of first view,’”
Kagan wrote. “It is therefore now up to the Court of Appeals to decide whether,
at each step of the search process, the warrant satisfied the Fourth
Amendment’s requirements of particularity and probable cause.”
In his
dissent, Alito wrote that the Supreme Court’s decision “further destabilizes”
longstanding jurisprudence on the Fourth Amendment. He accused the majority of
issuing an advisory opinion by not addressing whether the search of Chatrie’s
data was reasonable.
“Indeed,
by refusing to review the one question that could have at least theoretically
given Chatrie some hope of relief, the Court carefully set the stage for its
planned performance: striking a pose as a great champion of privacy in the
digital age. I cannot support this irresponsible escapade,” Alito wrote.
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