A years-old bank robbery could soon have a major impact on the privacy of every American who owns a cellphone. Arguments were heard in the Supreme Court on Monday Chatterjee v. United StatesThe case involved the use of a controversial “geofence warrant” by police to find and arrest Okello Chatri, a 2019 bank robbery suspect outside Richmond, Virginia. At stake is how private your location data – and any other information you store with a big tech company – really is.
Chatri was tracked through the location history feature on Google Maps, which can identify a person’s location to within three meters and is refreshed every two minutes. Police served Google with a warrant seeking data on anyone who was within 300 meters of Call Federal Credit Union at the time of the robbery, and later requested users’ information until they identified Chatterjee as the prime suspect.
Chatterjee’s attorney argues that the geofence investigation involved an unreasonable search and seizure and therefore violated the Fourth Amendment. A federal district court agreed, determining that police did not have probable cause for a geofence warrant – but the court ultimately sided with the government, using the “good faith exception” to justify the legality of an otherwise unconstitutional search. A federal appeals court not only upheld the government’s position but also ruled that the Fourth Amendment was not violated at all, because Chatry had voluntarily shared his location information with Google. After today’s arguments, the Supreme Court will deliver its verdict in the coming months.
Google will stop storing Maps users’ location history in the cloud in 2024, citing privacy concerns — a change that led some judges to question why the court was taking up the issue in the first place. “It involves a Google feature that no longer exists,” Justice Samuel Alito said during Monday’s oral arguments. “You are asking for a law review article on a topic that is largely unknown in our examples.”
But plenty of other companies track users’ location data: Uber, Lyft, and Snap, to name a few, all monitor and store information on users’ whereabouts. “Chatteri Other digital search cases can have much larger implications, particularly ‘reverse searches’ like this case where police have no identified suspect, account or device,” said Andrew Crocker, director of surveillance litigation at the Electronic Frontier Foundation. The Verge. (EFF filed an amicus brief in the case.)
Detectives sent a geofence warrant to Google after the 2019 robbery investigation ended in a deadlock. According to this, Google first provided semi-anonymous information of 19 users new republic. The detective investigating the case sent a follow-up request for the nine users’ data, with no explanation on “why she chose the nine accounts”, and then asked Google to anonymize those three accounts. This information led the police to Chattari.
Chatterjee’s attorney Adam Unikowski described these actions as “bad police work”. Some judges looked doubtful. For example, Justice Brett Kavanaugh said that the police work in the Chatterjee investigation “should be commended.”
A question at the heart of the matter is whether accessing geofenced information counts as a “search.” The court uses two methods to assess this, said Brent Scrope, a legal fellow at the liberal Cato Institute, who submitted an amicus brief in the case. The first involves property interests – whether there is a trespass during a search of a house, for example, or someone’s diary. The second involves whether basic privacy rights were violated, even in cases where no property is at stake.
main argument in ChatteriSkorup explained that Chatterjee had his location history records and that Google was keeping them in a virtual locker on his behalf, like a bank keeps someone’s money. “We lend our assets to third parties all the time,” Scorp said. “If you send a letter or put something in a safe deposit box, you still own the asset, even if you are handing it over to others.”
On Monday, most of the judges appeared skeptical about the property argument. But Chatterjee’s lawyers made another argument using what is known katz Examination Under the precedent set by Katz v. United StatesEven if there is no property involved, a search may be conducted if a person’s expectation of privacy is violated – this includes instances where police bugged a telephone booth, or obtained cellphone tower records, both without a warrant. The latter was the subject of Carpenter v. United StatesA 2018 case in which the court ruled that police generally must obtain a warrant to seize cellphone tower location records.
carpenterThe last major Fourth Amendment case taken by the Court may serve as a precedent. Chatteri – But since 2018, there has been a lot of change in the structure of the court. the court has been divided carpenterUltimately ruled 5-4 in favor of the warrant requirement. Two justices involved in that decision have since left the bench: Anthony Kennedy retired in 2018, and Ruth Bader Ginsburg died in 2020. His replacements, both appointed by President Donald Trump, are in favor of the government. But the court’s conservative structure is no guarantee for governance.
Although Chief Justice John Roberts said users can opt out of the location history feature — “If you don’t want the government to have your location history, you turn it off,” he said — he also asked government lawyers about the far-reaching effects of allowing police to seize people’s location data without a warrant. “What’s to stop the government from using it to find out the identity of everyone in a particular church, a particular political organization?” Roberts asked. “What are the restrictions that will keep this from becoming a problem?” In 2020, police used geofence warrants to investigate protesters in connection with Black Lives Matter protests in Kenosha, Wisconsin, searching for a suspect in a case of arson.
Stanford Law School professor Orin Kerr explained, “Chattery is making a very broad argument that, essentially, some databases are too large to search – even with a warrant.” The Verge. “If the court accepts this, it would have several implications: It would potentially void all warrants for Google search terms, tower dumps, and other technologies.”
Although police obtained a warrant to obtain the location data that led them to Chatterjee, the government claimed they did not need one – an argument that some judges found troubling.
“The stakes are high”. ChatteriThis goes far beyond the scope of discontinued Google features or even location tracking as a whole, Skorup says. “A lot of the issues here apply to other sectors. Location history is a factor, but each of us – most of us – has our individual, private records stored with a big tech company.”
“They say the location is different,” Scrope said, explaining the government’s reasoning. “If the government is correct that there’s no discovery when you turn over records to a big digital company, then the government can get all these records without a warrant, and if that’s the case then the Fourth Amendment becomes pretty hollow.”
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