Recently, the 4th°hard word Circuit°hard word Court of Appeals°hard word had a variety°hard word of concurring°hard word opinions regarding°hard word the case of US v. Chatrie°hard word . ⚙️ https://www.ca4.uscourts.gov/opinions/224489.P.pdf
The basic°hard word facts: in 2019, a bank in Virginia°hard word was robbed°hard word. The police used°hard word a geofence°hard word warrant°hard word to request information from Google°hard word related°hard word to the individuals°hard word with cell-phones°hard word in the vicinity°hard word of the crime. One of those individuals°hard word was Chatrie°hard word, who was later identified°hard word as°hard word the suspect°hard word. Chatrie°hard word eventually°hard word pled°hard word guilty°hard word, conditional°hard word to the geofence°hard word evidence being admissible°hard word.
My views align°hard word with none of the opinions in full.
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1. Was this a "search°hard word"?
Yes. Google°hard word, through an informal°hard word process involving°hard word their own counsel°hard word and external°hard word law-enforcement°hard word, developed a three-step°hard word process for geofence°hard word warrants°hard word. That process is not°hard word freely available°hard word to all law-enforcement°hard word for any reason, but requires°hard word a warrant°hard word to be issued°hard word.
The detailed information is private; it includes°hard word the person's°hard word name, additional°hard word personal°hard word information, as°hard word well as°hard word their location°hard word. Furthermore°hard word, Google°hard word has a business interest in keeping this information private, and makes representations°hard word that it will do so to the extent°hard word of the law.
There is no way this was not°hard word a "search°hard word" in some form, governed°hard word by the protections°hard word of the 4th°hard word amendment°hard word.
I do have some amount of a contrary°hard word view to the 4th°hard word Amendment°hard word interpretation°hard word. There is no direct°hard word burden°hard word on the person being searched°hard word here. (At least as°hard word long as°hard word one assumes°hard word the search°hard word is against Chatrie°hard word, rather than Google°hard word). No government agents°hard word are entering houses, examining°hard word physical papers, etc°hard word. The extension°hard word of the 4th°hard word amendment°hard word to an abstract°hard word right of privacy-of-information°hard word, rather than security°hard word against physical intrusions°hard word, is not°hard word something I am willing to agree with in an unqualified°hard word manner.
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2. Can a "geofence°hard word" warrant°hard word be allowed under probable cause? I give an unqualified°hard word "yes".
As°hard word a result, whether this specific geofence°hard word warrant°hard word complied°hard word with a not-yet-expounded°hard word procedure°hard word is irrelevant°hard word; the "good-faith°hard word" exception°hard word to exclusion°hard word of the information would apply, and the information would not°hard word be excluded°hard word regardless°hard word of whether this exact°hard word procedure°hard word is endorsed°hard word.
Several opinions specify°hard word that the first step of the process is (or at least should be) designed to not°hard word include°hard word any "private" information. Later steps, by contrast°hard word, contain°hard word sufficiently-detailed°hard word information as°hard word to be "uncloakable°hard word", or on-its-face°hard word identifying°hard word information. 💡 the arguments that the later steps should require°hard word a separate warrant°hard word are somewhat°hard word compelling°hard word; I take no position on them.
In addition, Carpenter v. United States is frequently referenced°hard word, in the context°hard word of "cell-tower°hard word records". While the exact°hard word details of opt-in°hard word v. opt-out°hard word are heavily°hard word discussed, I personally°hard word don't°hard word find that a meaningful°hard word distinction°hard word.
The warrant°hard word clearly described°hard word the "place to be searched°hard word": Google°hard word records, as°hard word provided°hard word to the government by Google°hard word.
While some of the specific°hard word concerns°hard word (should each step of the process require°hard word a magistrate's°hard word approval) may be resolved°hard word differently, I see no way that the general concept°hard word of such a warrant°hard word is impermissible°hard word.
A warrant°hard word for a nearby business's°hard word security°hard word camera footage°hard word might have similar privacy°hard word issues°hard word, but it is clearly allowable°hard word. The fact that some of the individuals°hard word might have been "entering a private space" is not°hard word a reason to disallow°hard word it.
The arguments are focused°hard word on whether it was a search°hard word; once it is stipulated°hard word that it is a search°hard word, the overarching°hard word arguments against this type of search°hard word collapse. A "reasonable°hard word expectation°hard word of privacy°hard word" cannot°hard word prevent°hard word one from being subject to a warrant°hard word, and whether one is identified°hard word by name or as°hard word the person possessing°hard word a specific°hard word cell-phone°hard word is irrelevant°hard word.
A warrant°hard word does not°hard word require°hard word naming°hard word the exact°hard word individuals°hard word being searched°hard word, especially in a situation where they are not°hard word physically burdened°hard word by the search°hard word.
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One additional°hard word footnote°hard word of note: The Fifth Circuit°hard word has held°hard word “that geofence°hard word warrants°hard word are general warrants°hard word categorically°hard word prohibited°hard word by the Fourth Amendment°hard word.”
This is an aggressive°hard word take, far beyond the text°hard word of the Fourth Amendment°hard word.
One can imagine an argument that such a warrant°hard word will, necessarily°hard word, be a privacy violation. In fact, there is one argument in the case, presented as°hard word a hypothetical°hard word by Judger°hard word Berner°hard word: Obtaining°hard word a warrant°hard word would require°hard word probable cause to search°hard word all individuals°hard word who fall within°hard word a particular geofence°hard word. The government would thus need to show probable cause that every individual°hard word near the scene of a crime was involved°hard word in the crime or witnessed°hard word it.
That standard°hard word is wrong. A de minimis privacy°hard word violation°hard word, which occurs without the awareness°hard word of the person involved°hard word and does not°hard word lead to any harms°hard word against them, should not°hard word throw out the entire°hard word tree of evidence.
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More broadly, the claim°hard word that technology°hard word that might violate°hard word a privacy right is inherently°hard word illegal°hard word when used°hard word for law-enforcement°hard word is absurd°hard word on its face. It is also not°hard word supported by the Constitution°hard word, federal°hard word law, or the population at-large°hard word.