Supreme Court urged to restore Fourth Amendment protections for digital data
The Supreme Court begins a new term next week. In the coming months, the justices will consider cases touching nearly every corner of American life. Among the cases the Court is being asked to take up is one presenting an important question about digital privacy: can the government demand access to your location data from companies like Google without a warrant based on probable cause?
That question is at the heart of Chatrie v. United States. The case arises from a “geofence warrant” which let law enforcement sweep up information about everyone near the scene of a robbery—including many innocent bystanders. Pacific Legal Foundation filed a friend-of-the-court brief on behalf of an amicus client urging the Court to hear the case and restore crucial Fourth Amendment protections for the digital age.
What happened in Chatrie
To investigate the robbery, law enforcement obtained a geofence warrant covering a 150-meter radius around the bank during a one-hour window. To comply, Google had to query its entire “Sensorvault,” a database storing the location histories of between 500 and 600 million users. From this trove, it produced data identifying 19 people—including petitioner Okello Chatrie—who was later prosecuted.
The Fourth Circuit, sitting en banc, upheld Chatrie’s conviction. The court applied the “good faith” exception, which allows evidence to be admitted even if the warrant later proves unconstitutional. But the judges split sharply on the underlying Fourth Amendment questions, issuing eight concurring opinions and one dissent. Their fractured reasoning is itself evidence that Supreme Court review is necessary.
The third-party doctrine and modern technology
The dispute turns on the scope of the “third-party doctrine,” announced in the 1970s in United States v. Miller and Smith v. Maryland. Those decisions held that once an individual shares information with a third party—such as a bank or a phone company—the Fourth Amendment does not require a warrant for the government to obtain that information from the third party.
In 2018, the Court narrowed that doctrine in Carpenter v. United States, holding that individuals have a reasonable expectation of privacy in cell-site location information, which is too revealing to be treated like the limited records in Miller and Smith. But Carpenter left open many questions, and lower courts have struggled to apply its reasoning.
The Fourth Circuit’s fractured opinions
Although the Fourth Circuit agreed on the result, its reasoning spanned nearly every possible approach.
Chief Judge Diaz declined to make broad constitutional pronouncements either way, but emphasized that even short snippets of location data can reveal highly sensitive information—such as visits to medical offices, religious institutions, or other private places. He noted that most mass database searches are “cut from the same cloth” as the geofence warrant, yet there is a “dearth of precedent to follow.”
Judge Wilkinson held that the third-party doctrine applied to the geofence warrant, describing the case as a straightforward application of Smith and Miller. He warned that privacy is not just freedom from government intrusion but “peace of mind” that the state can also protect via prosecuting criminals—an outlook that downplays the Fourth Amendment’s role in limiting government power.
Judge Niemeyer analogized the location data obtained by law enforcement in this case to physical “markers” left at a crime scene, though he conceded the analogy falters because Google’s Sensorvault contains vast quantities of information unrelated to any crime.
Judge Wynn criticized the court’s refusal to resolve “a novel question of law” and argued that the principles in Carpenter apply with equal or greater force to Google’s Location History. In his view, users do not “meaningfully” consent to sharing this data with Google, and the doctrine is “several decades beyond its time.”
Judge Richardson disagreed with Wynn, focusing on the limited scope of data actually obtained—about two hours of movement—concluding it was far less revealing than the surveillance at issue in Carpenter. He maintained that users knowingly and voluntarily expose location data to Google, so the third-party doctrine governs.
Judge Berner examined each step of the warrant separately. She found the initial anonymized dataset shared with the government to be less troubling but concluded that later steps, which revealed identifiable information, were unconstitutional for lack of probable cause.
Judge Gregory, in dissent, agreed with Wynn and Berner that the warrant violated Carpenter and argued the evidence should have been excluded. He rejected the government’s claim that the lack of precedent excused the violation, noting that officers must still establish probable cause when deploying new technologies.
Why Supreme Court review is necessary
The Fourth Amendment protects against unreasonable searches and seizures. That protection is hollow if the government can sweep up personal data simply because it sits on a private company’s servers. Geofence warrants allow law enforcement to investigate a place and time rather than a suspect, turning millions of innocent users of location-based services into subjects of government search.
As Chief Judge Diaz noted, even a “brief snapshot” of a person’s movements can expose intimate details of their life. Judge Wynn emphasized that technologies like Google’s Location History are indispensable to modern society, and it would be a “grave misjudgment” to treat limited disclosures to a service provider as an invitation for government access.
The fractured opinions below underscore the urgency of Supreme Court intervention. Some judges see Miller and Smith as controlling; others see Carpenter as the governing precedent; still others suggest adding more complexity to Carpenter’s multi-pronged rubric. This lack of clarity leaves lower courts, law enforcement, and the public without meaningful guidance. Our brief suggests a solution, based in the common law of contract, which would provide clarity for law enforcement, judges, service providers, and, most importantly, individual users of services provided by Google and other “third parties.”
The broader stakes
If allowed to stand, the Fourth Circuit’s decision risks normalizing suspicionless dragnet searches which erode the line between government power and individual privacy. In the digital era, sharing data with third parties is the norm. Location histories, emails, cloud documents, and countless other records are part of everyday life. To say choosing to use these services means forfeiting constitutional protections is to deny both the principles of the common law at the heart of Fourth Amendment protections, as well as the realities of modern existence.
By granting review in Chatrie, the Supreme Court can clarify that the Fourth Amendment continues to safeguard Americans in the digital age. The Court should return the third-party doctrine to its pre-1970s scope, reaffirming that constitutional rights do not necessarily vanish when information is shared for limited purposes with private individuals or companies.
The Fourth Amendment’s promise—that people shall be secure in their persons, houses, papers, and effects—demands no less.
