The Supreme Court’s last best chance to stop the surveillance state
When you text your doctor, share your location with a rideshare app, or use your credit card at checkout, you aren’t broadcasting your private life to the world. You’re sharing specific information, for a specific purpose, with a specific party you’ve chosen to trust—usually under terms of service that promise to keep it confidential. You know this. Your service provider knows this. The only institution in America that pretends not to know this is the federal government, armed with a legal doctrine the Supreme Court erroneously expanded almost fifty years ago.
That doctrine is the third-party doctrine. The Court now has a chance to return it to its original and proper scope in the case Chatrie v. United States, which it will hear Monday. It should seize that chance.
Dragnet searches and Supreme Court precedent
In 2019, the government obtained a “geofence warrant”—a demand that Google hand over location data on every user whose phone happened to be near the scene of a bank robbery.
Not a suspect. Not a person connected to the crime by evidence. Every person in the area.
Google searched its entire Sensorvault database—hundreds of millions of accounts—and produced the results. Okello Chatrie was among them.
The government relied on the third-party doctrine to justify this dragnet search. The doctrine was dramatically expanded without justification in two 1970s cases, United States v. Miller and Smith v. Maryland. Their holding was disarming in its simplicity and devastating in its consequences: if you share information with a third party, you forfeit any “reasonable expectation of privacy” in that information. It doesn’t matter that you shared it for a limited purpose or that your service provider contractually promised to protect it. In the eyes of the law, you might as well have shouted it through a megaphone, from the highest mountaintop, on worldwide livestream.
This was always a dubious proposition, but in the digital age, it’s absurd. Your phone continuously communicates with cell towers. Your search queries exist in databases. Your emails and messages pass through servers. To claim that all of this information is fair game for warrantless government access simply because a service provider processes or stores it is to say that the Fourth Amendment has nothing to offer the twenty-first century.
The Court recognized as much in Carpenter v. United States in 2018, when it held that the government needs a warrant to access historical cell-site location information. But Carpenter was deliberately narrow and didn’t overrule the third-party doctrine. It carved out an exception using a multifactor balancing test, then left lower courts to figure out what, exactly, that test means for other kinds of digital data.
The result—on full display in the fractured en banc Fourth Circuit opinions in Chatrie—has been miasmic confusion. Judges applying the same precedent to the same facts reached very different conclusions, each reading his or her own normative commitments into factors elastic enough to accommodate almost anything.
What does this mean for Chatrie?
The temptation will be to make Chatrie a Carpenter sequel—to decide the case on narrow grounds and carve out another exception for geofence warrants while leaving the third-party doctrine essentially untouched. The Court should resist that temptation. It may not get another opportunity like this one.
The pace of government surveillance is accelerating, not slowing. ICE deploys tools that monitor every phone in a neighborhood. Palantir compiles data on American citizens for the executive branch. The Bureau of Alcohol, Tobacco, Firearms and Explosives has built a backdoor gun registry. Credit card transaction codes are being repurposed for financial surveillance.
Each of these programs feeds on the same legal permission slip: the third-party doctrine’s promise of warrantless, suspicionless access to any information shared with a service provider, regardless of purpose or context.
If the Court issues another narrow ruling, it will leave Miller and Smith intact to enable government exploitation of the next surveillance technology. America will be playing whack-a-mole against an apparatus that grows faster than any court can supervise. By the time the next case arrives, the surveillance infrastructure may be so deeply embedded that even a bold ruling cannot dislodge it.
There is a better path. It’s not a radical one. It asks only that the Court take seriously the rights that the Fourth Amendment was intended to secure.
Securing Fourth Amendment protections in the digital age
The logic is straightforward. When you entrust your data to a service provider under legally enforceable terms that promise confidentiality, those terms function like a “no trespassing” sign on your property—property that is perhaps more valuable than any other you own. Your data.
In Fourth Amendment terms, your data is your “papers and effects.” When privacy-protective terms of service are in place, the government should be required to get a warrant, based on probable cause and particularized suspicion, before accessing that information. When such terms are absent—when a provider’s terms inform users that data may be shared with law enforcement at any time for any reason—no warrant would be required.
The rule would be clear, predictable, and anchored in the rights individuals exercise every day. It would end the government’s ability to search first and develop suspicion later—to cast a digital dragnet over an entire population to see what turns up.
It would also create market incentives for service providers to compete on privacy, to offer users meaningful protections worthy of the information with which they are entrusted. And it would aid law enforcement, by reducing providers’ incentive to adopt countermeasures—such as the end-to-end encryption Google has now implemented for Location History—that put data beyond the reach of even lawful, particularized warrants.
This approach is not soft on crime. Grand jury subpoenas could remain available. Undercover investigations would be unaffected: as we explained in our amicus brief, filed on March 2, while legal agreements to keep information private should be respected, agreements among criminal co-conspirators—including promises to conceal evidence of a crime—have never been entitled to enforcement in courts of law. Accordingly, evidence obtained from “secret agents” has long been denied Fourth Amendment protection. And when there is probable cause to believe a specific person’s data contains evidence of a crime, a warrant is not hard to get. Everyone benefits when the rules are clear and grounded in rights instead of ad-hoc balancing.
Closing thoughts
“Awareness that the government may be watching chills associational and expressive freedoms,” Justice Sotomayor wrote in United States v. Jones. She was right. And it gets chillier with every year the judge-created third-party doctrine remains on the books, as the volume and intimacy of data we share with service providers expands beyond anything the Miller and Smith Court could have imagined.
The Justices will be urged to proceed cautiously in Chatrie, to leave the big questions for another day. But another day may not come—not before surveillance architecture becomes a permanent feature of American life.
The Court should rule for petitioner Chatrie, and it should do so in a way that makes clear: when Americans choose to protect their property and privacy through the contracts they sign with the companies they trust, the Constitution honors that choice.