Supreme Court justices lobbed sharp questions at both sides about the constitutionality of geofence warrants during oral arguments Monday in a case that could have broader implications for law enforcement collection of Americans’ data.

Chatrie v. The United States stems from the 2019 conviction of Okello Chatrie in a bank robbery, where authorities obtained location data from Google about people within a specific area at a specific time.

In questioning an attorney for the petitioner, Adam Unikowsky, a number of conservative justices — including Chief Justice John Roberts — asked why the government shouldn’t be allowed to access location data taken from a third party given that Chatrie had “opted-in” to share that data.

“I just don’t agree that one should have to flip off one’s location history as well as other cloud services to avoid government surveillance,” Unikowsky answered, raising whether the government was entitled to getting emails or calendar data that are also stored in the cloud. (Google has since moved location data to users’ individual devices.)

Some liberal justices, too, had skeptical questions for Unikowsky. “This identifies a place, a crime — a limited time frame, but a time frame,” Sonia Sotomayor said, referring to protections from open-ended searches under the Fourth Amendment. “So it’s not a general warrant in this historical sense.” But she also said that because location data follows users everywhere: “When the police are searching or asking for a search result, there’s no way to predict whether they’re going to invade your privacy.”

The line of questioning about how far a government request for bulk data can go continued from both conservative and liberal justices when it was the government’s turn to argue its position. Justices probed skeptically about what made emails or calendar data different, and whether the government could do a physical search of all of the lockers in a storage facility to find one gun they believed might be there.

It was an unusually long session for the Supreme Court, going two hours. A ruling could come in June or July. Predicting how a court will decide based on justices’ questions is famously fraught. Only one justice, Samuel Alito, hinted strongly at how he was likely to decide.

“I’m struggling to understand why we are here in this case, other than the fact that at least four of us voted to take it,” he said. He said he didn’t believe anything new of note could come out of the court based on lower court rulings during questioning of Unikowsky. “We are all free to write law review articles on this fascinating subject, but that seems like that’s what you’re asking for.”

Orin Kerr, a Stanford University law professor who filed a friend of the court brief on the government’s side, said he believed based on the oral arguments that the court will say geofence warrants can be drafted lawfully.

“The Justices seem likely to reject the broader argument Chatrie made about the lawfulness of the warrant,” he wrote on social media. “They’ll probably say the geofence warrants have to be limited in time and space.”

Casey Waughn, a privacy lawyer and senior associate at Armstrong Teasdale, was struck by the absence of a major focus on “third-party doctrine,” under which there’s no reasonable expectation of privacy when citizens give their information to an outside party like a bank. 

She also honed in on arguments Unikowsky made.

“His argument really gave two lines to go down for the judges, and one was that you have a property interest in your data on the cloud, and the other was that you have a reasonable expectation of privacy for your data on the cloud,” she told CyberScoop. “And historically, both of those avenues have been grounds on which the Court has found that …issue is protected under the Fourth Amendment, and therefore that the actions constituted a search. So I thought it was interesting that he went and kind of argued both of those lanes.”

Alan Butler, executive director of the Electronic Privacy Information Center that filed a friend of the court brief on the side of the petitioner, said the stakes in the case are high.

“Today’s arguments underscored that the Supreme Court is weighing one of the most consequential privacy questions of the digital age: whether the government can use sweeping location data searches to identify a suspect,” he said in a statement after the arguments. “The Court should hold that the Constitution protects our digital data even when it is stored by an app or cloud provider. The Court should ensure that the highly sensitive records generated by our phones cannot be obtained without particularized suspicion and close judicial oversight.” 

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The Supreme Court will hear oral arguments Monday in a case that could limit the government’s ability to obtain bulk digital data of device users with a single warrant, in a rare instance of the country’s top justices taking on digital rights.

Chatrie v. The United States is the first major Fourth Amendment case the court has taken up since 2018, despite the proliferation of technology that impacts privacy since then. At the center of what the justices will address are so-called geofence warrants, which compel companies to disclose user data from a certain time and location.

“It’s a really interesting question about a law enforcement tool that would have been unimaginable a few decades ago, where you can basically look at potentially every phone, for example, that passed through a particular area in a particular window,” said John Villasenor, a law professor at UCLA and nonresident senior fellow at the Brookings Institution.

Both conservative and liberal civil liberties advocates have lined up in favor of the petitioner, leaving the United States government with fewer friend-of-the-court briefs on its side. Okello Chatrie was convicted for a 2019 bank robbery after police used a geofence warrant to obtain information from Google about users during a one-hour period and 17.5-acre area, then refined the search.

In Congress, Democrats have raised concerns about geofence warrants as they might pertain to abortion rights, while Republicans have raised concerns about their use in tracking suspects linked to the Jan. 6, 2021 insurrection at the Capitol.

Courts have been divided on the legality of the geofence warrant in Chatrie’s case. Google has since stopped storing location data in the cloud and moved records directly to user devices, but those siding with Chatrie say it could have broader implications for financial records, search history records, chat bot records and more.

“We think it’s important that courts get it right and that, among other things, courts recognize that we have a property interest in many of our digital records,” said Brent Skorup, a legal fellow at the Cato Institute, which has filed an amicus brief on behalf of the petitioner. “If the government can get those digital records without a warrant, that renders the Fourth Amendment pretty empty and we’re not secure in our privacy and traditional rights to having control of our private papers and effects.”

The United States noted that Chatrie opted into Google’s storage of his location history, and that the information’s collection is not substantially different from identification of other markers of someone’s presence, like tire tracks or boot prints.

“Individuals generally have no reasonable expectation of privacy in information disclosed to a third party and then conveyed by the third party to the government,” it wrote. A collection of 32 attorneys general have sided with the U.S. government, as well as some law professors.

In the 2018 case, Carpenter v. The United States, the Supreme Court limited the applicability of that “third-party doctrine” — echoed by the U.S. government’s argument in the Chatrie case — to search and seizure of 127 days’ worth of someone’s cell site location information, ruling that it constituted a search under the Fourth Amendment and therefore required a warrant.

The type of warrant is at issue in Chatrie v. The United States. A Virginia court ultimately found that geofence warrant unconstitutional because it was not sufficiently specific and was not supported by probable cause for every user whose data was collected. However, the court ruled the evidence was admissible in court, because law enforcement acted in “good faith” in the belief that it was constitutional.

Villasenor said the court could clear a lot up by addressing the good faith exception, something lower courts have used to sidestep substantial constitutional rulings, according to one study. But both Villasenor and Skorup say it’s possible that the Supreme Court also could fail to arrive at a conclusive ruling on the issues at stake in Chatrie.

While some civil liberties advocates are optimistic about the outcome due to the court’s ruling in Carpenter, three justices in that case have since been replaced by others.

The rarity of such digital privacy cases rising to the level of the Supreme Court might be simply a function of a crowded court agenda, but it’s not the only possibility.

“Part of it might be because the court has not developed a consensus view about how to approach these yet,” Skorup said. “It’s speculation on my part, but they probably have some ambivalence about taking up cases where they know that they’re not going to speak with one voice, or they know they might speak with fractured voices.”

Google itself filed a brief in the case, but sided with neither party, saying it took no position on the warrant in Chatrie’s specific case.

“But it urges the Court to hold that Google Location History and other similar digital documents stored remotely deserve the Fourth Amendment’s protection,” it wrote. “A contrary rule would leave the intimate details of millions of Americans’ daily lives — data that will exist in many forms as technology rapidly develops — exposed to warrantless surveillance.”

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