US Supreme Court appears divided over controversial use of ‘geofence’ search warrants

The US Supreme Court on Monday heard arguments in a landmark legal case that could redefine digital privacy rights for people across the United States.

The case, Chatrie v. In the United States, the focus is on the government’s controversial use of so-called “geofence” searches. Law enforcement and federal agents use these warrants to force technology companies, such as Google, to hand over information about which billions of users were at a certain place and time based on the location of their phone.

By casting a wide net over a tech company’s stores of user location data, investigators can untangle the engineer at the scene, effectively allowing police to identify criminal suspects like finding a needle in a digital haystack.

But civil liberties advocates have long argued that geofence warrants are inherently overbroad and unconstitutional since they retrieve information about people who are close to but not connected to an alleged incident. In several cases in recent years, geofence warrants have caught innocent people who were nearby by chance and whose personal information was wanted anyway, incorrectly installed to collect data outside of their intended location, and used to identify people who attended demonstrations or other legal gatherings.

The use of geofence warrants has seen a huge rise in popularity among law enforcement circles over the past decade, with a New York Times investigation finding the practice began to be used by federal agents in 2016. Each year since 2018, federal agencies and police departments in the US have filed thousands of geofence warrants, representing a significant portion of the data collected by bank users obtained by Google, every year since 2018. search, maps, and Android devices.

Chatrie is the first major Fourth Amendment case the US Supreme Court has heard this decade. The decision can determine whether geofence permits are legal. Much of the issue hinges on whether the US public has a “reasonable expectation” of privacy in information collected by tech giants, such as location data.

It is not yet clear how the nine Supreme Court justices will vote – a decision is expected later this year – or whether the court will issue an order to end the controversial practice. But arguments heard before the court on Monday give an idea of ​​how the justices may decide in the case.

‘Search first and create suspicions later’

The case centers on Okello Chatrie, a Virginia man who was convicted of a 2019 bank robbery. The police at that time saw the suspect talking on a mobile phone in the bank’s security footage. Detectives then served Google with a “geofence” search warrant, demanding that the company provide information about all phones located away from the bank and within an hour of the robbery.

Basically, law enforcement is able to map the location of a crime scene or other important location, and they want to sift through large amounts of location data from Google’s databases to identify who was there at a certain time.

In response to the geofence warrant, Google provided anonymous location data for account holders who were in the area at the time of the heist, and investigators requested more information about other accounts that were near the bank in the hours before the operation.

Police then obtained the names and related information of three account holders – one of whom they identified as Chatrie.

Chatrie eventually pleaded guilty and received a sentence of more than 11 years in prison. But as his case continues in the courts, his legal team said that the evidence obtained through the geofence warrant, which allegedly linked him to the crime scene, should not have been used.

A key point in Chatrie’s case raises an argument that privacy advocates often use to argue for the unconstitutionality of geofence mandates.

The geofence warrant “allowed the government to search first and raise suspicions later,” they argue, adding that it runs afoul of long-standing principles of the Fourth Amendment that set up guardrails to protect against unreasonable searches and seizures, including of people’s data.

As the Supreme Court watch site SCOTUSblog points out, one of the lower courts agreed that the geofence warrant did not establish the “probable cause” requirement linking Chatrie to the bank robbery that warrants the geofence.

The argument suggested that the warrant was too common to not specify the specific account containing the data investigators were after.

But the court allowed the evidence to be used in the case against Chatrie because it ruled that law enforcement acted in good faith in obtaining the warrant.

According to a blog written by civil liberties lawyer Jennifer Stisa Granick, the amicus brief filed by an organization of security researchers and experts presented the court with “very important and important arguments” to help guide its final decision. The brief argues that the geofence warrant in the Chatrie case was unconstitutional because it ordered Google to use data stored in the individual accounts of hundreds of millions of Google users to obtain information the police wanted, a practice that violates the Fourth Amendment.

The government, however, strongly argued that Chatrie “chose to allow Google to collect, store, and use” his location data and that the warrant “simply directed Google to obtain and respond to the necessary information.” US Attorney General, D. John Sauer, arguing for the government before Monday’s hearing, said “Chatrie’s arguments mean that no geofence warrant, of any kind, will ever be executed.”

A division of the appeals court follows. Chatrie’s lawyers asked the US Supreme Court to take up the issue to decide whether the geofence warrants are constitutional.

The judges appeared mixed after hearing the arguments

Although the case is unlikely to affect Chatrie’s sentence, the Supreme Court’s decision could have far-reaching implications for Americans’ privacy.

Following live-streamed oral arguments between Chatrie’s attorneys and the US government in Washington on Monday, the court’s nine justices appeared divided on whether to completely block the use of geofence warrants, although the justices could find a way to limit the way the warrants are used.

Orin Kerr, a law professor at the University of California, Berkeley, whose expertise includes Fourth Amendment law, said in a lengthy social media post that the court would “likely reject” Chatrie’s argument about the warrant’s validity, and would likely allow law enforcement to continue using geofence warrants, as long as they are limited in area.

Cathy Gellis, a lawyer who writes for Techdirt, said in the post that it appears the court “likes warrant geofences but may be hesitant to eliminate them entirely.” Gellis’ analysis expected “baby steps, not big rules” in the court’s final decision.

Although the case focuses primarily on Google’s location information searches, the results reach far beyond Google but to any company that collects and stores location data. Google eventually moved to store its users’ location data on their devices rather than on its own servers where law enforcement could request it. The company stopped responding to geofence warranty requests last year as a result, according to the New York Times.

The same cannot be said for other technology companies that store their customers’ location data on their servers, and in a place where law enforcement has access. Microsoft, Yahoo, Uber, Snap, and others have been granted geofence permissions in the past.