The First Geofence Warrant Case Reaches the Federal Court of Appeals

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In March 2022, I had a long post on the district court’s ruling in United States v. Chatrie, the first federal district court ruling on geofence warrants and the Fourth Amendment.  Today the Fourth Circuit held oral argument in the case, which you can listen to here starting at about 1:10:

I posted my oral argument impressions on X, and I thought I would summarize my thoughts here, too.

It was a somewhat unusual argument, in that the judges spent a lot of time expressing their views and arguing amongst each other.  In general, though, I thought it went well for the government. I would guess they prevail 2-1.

Judge Richardson seemed to be a vote on the government’s side, and on the broadest ground.  He suggested that there was no Fourth Amendment protection in the specific records known as “Google Location History” because you need to opt in to have Google collect them.  Only about 1/3 of Google customers opt in to that. And to Judge Richardson, that was outcome determinative: If Google only keeps these particular records if you opt in, then you have volunteered to have those records and the third party doctrine applies.

I happen to think that’s right, as I argue briefly in a forthcoming book (more on the book project later). I realize some are skeptical that Google really doesn’t keep these records about everyone, but I understand Google’s claim to be not that they can’t figure out where phones are, but that they have a specific service called Google Location History that is at issue here. Those are the records that the government turned over, and those are the records that (Google claims) they only collect from the 1/3 or so of their users who opt in.

Judge Wilkinson was clearly on the government side, although quite possibly on a different basis.  Judge Wilkinson was very concerned about limiting law enforcement use of this useful tool. He suggested he might want to rule for the government without deciding anything except the good faith exception.  That way, the law could develop slowly without grand rulings from appellate courts trying to settle too much.

Judge Wynn was clearly on the defense side. He thought this was extremely disturbing surveillance.  He analogized this authority to what you might expect in Nazi Germany. He also argued that that opting in is a fiction. There is no real option, in his view.

Looking ahead, an interesting question is whether Judges Richardson and Wilkinson will agree on a rationale to make a majority opinion. It’s not clear they’ll be able to find a common ground. We could end up with a narrow majority opinion on good faith with both Richardson and Wilkinson writing concurrences—with Judge Richardson writing on opting in and Judge Wilkinson hitting his usual themes of the need to go slowly in this area.

Speaking for myself, I hope the court doesn’t decide the case on the good-faith exception without deciding at least some of the merits issues.  We’ve been waiting for years for a geofence case to get to a federal court of appeals. There’s almost no law from any court on what is a search in geofence cases, and the law on the particularity of warrants has so far only consisted of really weak and unilluminating decisions from trial courts.  For the big case to finally reach a federal court of appeals, and to not get a ruling on any of the merits issues, would be the good faith exception at its worst.  It would make sure no one ever knows what the law is.

That would be particularly problematic here, I think, because right now geofence investigations are conducted in the alternative universe of Google Policy.  Google has the records, and it won’t turn them over without a warrant.  The company has come up with a complex procedure for how it will comply with the warrants.  That procedure doesn’t reflect law; it just reflects Google policy.  And Google is very hard to sue about this stuff, as law enforcement would have to stop its investigation for a few years to litigate procedural issues just to try that. As a practical matter, right now Google sets the rules.

But it’s hardly clear that Google’s corporate policy is the right framework.  First of all, if it’s really the case that only 1/3 of Google users opt in to turning Location History on, then I am skeptical that there is probable cause to support a warrant in these cases.  And if the same opt-in requirement that generates that skepticism means that such records are not protected by the Fourth Amendment, as Judge Richardson (I think correctly) suggested, then there is no legal basis on which Google can demand a warrant anyway.

So it may be that the whole warrant regime that Google has created is the wrong framework. It may be that warrants not only can’t be demanded, but can’t be obtained.  Geofencing would instead take place under the statutory regime of 18 U.S.C 2703(d). And that would raise all the issues I wrote about in this article about how to do particularity for non-content records under the Stored Communications Act.

Anyway, it seems to me that a working system would feature courts ruling about the constitutional issues potentially raised by geofence warrants and then Congress legislating in response to those constitutional rulings— with Google’s input, certainly, but not with Google calling the shots. On the other hand, if we’re just muddling through under the good faith exception, it may be that the strange world of Google Policy continues on for a long time.

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