Supreme Court weighs ‘geofence warrants’ for police to get cellphone users’ location data

Supreme Court justices probed the trickiest corners of modern technology, convenience and privacy law Monday as they tried to figure out how far police may go in asking Google to turn over users’ location data to help solve crimes.

Acknowledging they were touching on areas largely unexplored by the court before, the justices sought to apply constitutional protections written in the 18th century, about papers and houses, to today’s ubiquitous smartphones and to the complex user agreements we all sign giving major technology firms freedom to share the data they have on us.

During an oral argument that lasted more than two hours, the justices ranged from high-level conversations about the Constitution to wondering about people’s potty habits. Justice Sonia Sotomayor observed that people take their phones everywhere now, “including, I suspect, some people, to the bathroom.”

Justice Amy Coney Barrett may have summed up the court’s thoughts best when she said she would “need to check my location services settings, plainly,” and then clarified, “not that I’m going to commit crimes.”

The case before the justices stemmed from a 2019 armed bank robbery at the Call Federal Credit Union in Midlothian, Virginia. The robber brandished his gun, told the teller he had accomplices who were holding their family hostage and then ordered the manager to empty the safe, making off with $195,000.

He eluded police for months until they obtained a geofence warrant, which asked Google to scour its records and identify those who were near the scene within an hour of the robbery. That ended up including people at homes, a restaurant and even a nearby church.

In the end, Google identified 19 accounts, narrowed that to nine and turned over subscriber information for three. One belonged to Okello Chatrie, who pleaded guilty and was sentenced to nearly 12 years in prison. He challenged the warrant, arguing it violated his Fourth Amendment rights against unreasonable searches.

The Trump administration defended the use of geofence tools before the justices Monday, saying Chatrie waived his objections when he accepted Google’s user agreement and opted in to letting the tech giant access his location history.

That resonated with some of the court’s conservative wing.

“The only reason the government has access to this information is you decided to make it public,” Chief Justice John G. Roberts Jr. said. “If you don’t want them to peer into your window, you can close your window, or the shades.”

Adam Unikowsky, Mr. Chatrie’s lawyer, said a better analogy would be the mail. And he said accepting the unfettered use of geofence warrants would be like saying if you don’t want the government poking through your mail, you shouldn’t send mail.

He said if location history is fair game, then so are email, photos or calendars stored with Google.

“That is really the end of the Fourth Amendment for any private document you’re storing with Google,” he said.

The case builds on a line of rulings by the justices involving smartphones.

In the 2014 Riley decision, the high court unanimously found that police needed a warrant before perusing the digital contents of a cellphone seized during an arrest. Four years later, in the Carpenter decision, the court ruled that the government did perform a search — and thus needed a warrant — when it sought the location history of a particular person to try to tie that person to a crime.

Monday’s case is the reverse: Authorities don’t know the identity but think they can narrow it down using the data.

The fact that people at a church were snared loomed large for some of the court’s members, who wondered what other constitutionally protected activities might also be detected by a geofence search.

“What’s to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization?” Chief Justice Roberts asked.

Deputy Solicitor General Eric Feigin said churches could be fair game, and he pointed to church shootings as a reason why that could be necessary.

He said it’s up to users to police themselves.

“If someone doesn’t want it known they’re going to a particular place, an abortion clinic, for example, they don’t have to enable location history, or keep it on,” he said.

That didn’t sit well with the chief justice.

“They want to have a catalog of the people who go to a particular location. And it seems to me that that’s a realistic problem,” he said. “To prevent surveillance of sensitive locations, you have to rely on the fact that people are going to turn off something that many, if not most, people find is an important service?”

The justices repeatedly sought analogies to try to shoehorn the case into existing law.

Mr. Unikowsky said the location information was similar to a locker, which he said would have been beyond the government’s reach without a valid search warrant.

Mr. Feigin resisted comparing the location data to a physical location, but suggested that if the justices did want to see it that way, the lockers in this case had glass doors that anyone could see through.

That’s because someone’s presence in a certain location is easily discoverable — and clearly not private — for anyone who was either there, or who had access to cameras that covered that space. And, Mr. Feigin said, they did it knowingly, opting in to Google’s location services.

He said that was “effectively shouting and broadcasting your location to Google.”

Mr. Feigin also disputed the idea that email, photos or documents stored in the cloud would be vulnerable to the same kind of police request.

He said those involve the contents of one’s thoughts or expressions, which had always been more highly protected than one’s whereabouts in public.

At the time the case developed in lower courts, about a third of Google’s customers chose to enable location services.

In 2023, Google changed its policy so that location data is now stored on each user’s phone rather than in the cloud, so a similar geofence warrant would not be effective today.

Justice Samuel A. Alito Jr. seemed the most certain of the court’s members about the case, suggesting it didn’t belong before the justices.

He pointed out that, whatever the big constitutional issues at play, most of the 4th U.S. Circuit Court of Appeals, which heard the case before it reached the justices, said the evidence collected from the search would have been admissible in the criminal case for multiple reasons.

So even if the high court were to rule in general that the geofence search was problematic, it wouldn’t overturn the conviction.

“I’m struggling to understand why we are hearing this case other than the fact that at least four of us voted to take it,” he said. It takes four of the nine justices to grant a petition to take a case.