The U.S. Supreme Court heard arguments Monday in a landmark case that could redefine digital privacy rights for people across the country.
The case, Chattry v. United States, focuses on the government’s controversial use of so-called “geofencing” search warrants. Law enforcement and federal investigators use these warrants to force tech companies like Google to hand over information about which of their billions of users were at a particular place and time based on their cell phone location.
By casting a wide net over users’ location data stored by tech companies, investigators can reverse engineer who was at a crime scene, effectively allowing police to identify criminal suspects, much like finding a needle in a digital haystack.
But civil liberties advocates have long argued that geofencing warrants are inherently overbroad and unconstitutional because they return information about people who are nearby but have no connection to the alleged incident. In several recent cases, geofencing warrants have been used to identify individuals who attended protests or other legal gatherings, ensnaring innocent people who happened to be nearby, asking for personal information anyway, and erroneously applying to collect data far beyond what was intended.
The use of geofence warrants has become rapidly popular among law enforcement agencies over the past decade, with federal agents first using the practice in 2016, a New York Times investigation found. Every year since 2018, federal agencies and police departments across the country have filed thousands of geofence warrants, making up a significant portion of the legal requests received by technology companies like Google, which store vast banks of location data collected from users’ searches, maps, and Android devices.
Chhatley is the first major Fourth Amendment case considered by the U.S. Supreme Court in a decade. The decision could determine whether geofencing warrants are legal. Much of the case hinges on whether people in the United States have a “reasonable expectation” of privacy for information collected by the tech giants, including location data.
It is not yet clear how the Supreme Court’s nine justices will vote (a decision is expected later this year) or whether the court will order an end to the controversial practice altogether. But arguments heard in court Monday provide some insight into how the justices will rule on the case.
“Investigate first, then deepen your suspicions later.”
The case focuses on Okello Chattry, a Virginia man who was convicted of a 2019 bank robbery. At the time, police saw the suspect on bank security footage talking on a cell phone. Investigators then issued a “geofence” search warrant to Google, requiring the company to provide information about all cellphones within a short distance of the bank and within an hour of the robbery.
In fact, law enforcement agencies can draw shapes on maps around crime scenes and other locations of interest, and are required to sift through large amounts of location data from Google’s database to pinpoint who was there at a particular time.
In response to the geofence warrant, Google provided a large amount of anonymized location data for account holders who were in the area at the time of the robbery, but investigators later sought detailed information about some accounts that were near the bank in the hours before the robbery.
Police then received the names and relevant information of three account holders and identified one of them as Chattry.
Chattry ultimately pleaded guilty and was sentenced to more than 11 years in prison. But as his case progressed through court, his defense team argued that evidence obtained through a geofence warrant that allegedly linked him to the crime scene should not have been used.
A key aspect of Mr. Chatley’s case evokes an argument that privacy advocates have often used to justify the unconstitutionality of geofencing warrants.
Geofencing warrants “allowed the government to search first and develop suspicions later,” they argued, adding that this violates the long-standing Fourth Amendment principle of putting up guardrails to prevent unreasonable searches and seizures involving people’s data.
As Supreme Court watchdog site SCOTUSblog points out, one lower court agreed that the geofence warrant did not establish “probable cause” linking Chhatley to the bank robbery, a prerequisite that justified the geofence warrant in the first place.
The argument was that the warrant was too general because it didn’t provide a specific description, including what data investigators were tracking.
But the court allowed the evidence to be used in the case against Chattry anyway because it determined that law enforcement acted in good faith in obtaining the warrant.
According to a blog post by civil liberties attorney Jennifer Stisa Granik, a court brief filed by a coalition of security researchers and technologists presented the court with the “most interesting and important” arguments that will guide its final decision. The brief argues that the geofencing warrant in Chatry’s case is unconstitutional because it orders Google to aggressively search data stored in the personal accounts of hundreds of millions of Google users to obtain the information police are looking for, an action inconsistent with the Fourth Amendment.
But the government’s main argument is that Mr. Chattry “actively chose to allow Google to collect, store, and use” his location data, and that the warrant “simply directed Google to locate and hand over the information it needed.” Ahead of Monday’s hearing, U.S. Attorney General D. John Sauer defended the government, saying Mr. Chattry’s “arguments seem to imply that geofencing warrants of any kind cannot be executed.”
After a split court on appeal. Chatley’s lawyers asked the U.S. Supreme Court to take the case to the U.S. Supreme Court to determine whether geofencing warrants are constitutional.
The judges who heard the argument had mixed feelings.
While this case is unlikely to affect Chhatley’s decision, the Supreme Court’s decision could have far-reaching implications for Americans’ privacy.
After a livestreamed oral argument between Chhatley’s lawyers and the U.S. government in Washington on Monday, the court’s nine justices appear to be sharply divided on whether to ban the use of geofence warrants altogether, but the justices may find a way to narrow how the warrants can be used.
Orrin Carr, a law professor at the University of California, Berkeley, who specializes in Fourth Amendment law and other matters, said in a lengthy social media post that the court “will likely reject” Chatry’s arguments about the legality of the warrants and that law enforcement will likely continue to use geofence warrants as long as they are limited in scope.
Lawyer Kathy Gellis, who writes for Techdirt, said in a post that courts “seem to like geofencing warrants, but may be hesitant to lift them completely.” Gellis’ analysis predicted that the court’s final ruling would be “small steps, not big rules.”
Although this lawsuit primarily focuses on searches in Google’s location database, its implications extend far beyond Google to any company that collects and stores location data. Google has finally moved to storing your location data on your device rather than on its servers, where law enforcement can request it. The company stopped responding to geofencing warrant requests last year as a result, according to the New York Times.
The same cannot be said for other technology companies that store customer location data on their own servers and within reach of law enforcement. Microsoft, Yahoo, Uber, and Snap have all been issued geofence warrants in the past.
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