Police requests for cellphone location data leave justices’ heads in the cloud

WASHINGTON (CN) — With their own security settings top of mind, the Supreme Court on Monday considered how the government could use cellphone location data to solve crime.

Geofence warrants allow the government to obtain location data from service providers to identify users in a particular area at a particular time. Law enforcement used the technology to nail down a suspect in a Virginia bank robbery.

Monday’s two-hour oral argument session on the constitutionality of such actions put the justices’ own technological prowess on display.

“This seems very complicated from the user’s point of view, frankly,” Justice Amy Coney Barrett, a Donald Trump appointee, said. “You know, I have no idea how my data is stored and whether it’s in these virtual lockers or not.”

Okello Chatrie said police search of his own virtual locker violated his Fourth Amendment rights. His data showed up in a geofence warrant that a Virginia detective obtained after running out of leads while investigating the 2019 robbery.

Chatrie told the court the search violated his Fourth Amendment right because it authorized the police to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime.

“Petitioner had a reasonable expectation of privacy in his location history given both its sensitive and revealing nature and the fact that it was stored in his password-protected account,” Adam Unikowsky, an attorney with Jenner & Block representing Chatrie, said.

Justice Samuel Alito, a George W. Bush appointee, was skeptical that the government had taken anything that wasn’t freely offered up.

“He not only turned it on, but had he read his contract with Google, he could see that Google retained the right to turn this information over to law enforcement if it thought that that was appropriate,” Alito said.

Not all of Alito’s colleagues seemed to agree. Justice Sonia Sotomayor, a Barack Obama appointee, noted there was no way to predict what data might be swept up into a police investigation.

“People take their phone everywhere, including, I suspect, some people to the bathroom. You really have no idea what private information because it’ll follow you to a brothel, it’ll follow you to a cannabis shop, it’ll follow you to just about anywhere where there’s a reasonable expectation of privacy,” Sotomayor said.

Unikowsky said it’s quite common for people to consent to putting their data in the cloud, but most people do not expect that information to be given to police officers without their knowledge.

“Every time you send an email or you send a document, have a Google calendar entry, all those things, you’re consenting to sending it in encrypted fashion from your phone to the cloud,” Unikowsky said. “But I don’t think that the consent merely to have your data stored in this virtual storage locker in and of itself is consent to disclose to the government.”

Google gave the detective anonymized data for 19 users within a 300-meter diameter around a bank. The tech giant then provided additional data on nine users at the detective’s request and ultimately deanonymized three numbers.

Most of the other 19 users swept up in the search were sitting at a nearby church. For several justices, the identification of churchgoers seemed to epitomize the danger of giving the government unfettered access to sensitive information.

“So, 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?” Chief Justice John Roberts, also a Bush appointee, asked.

Despite the justices’ concerns, the court appeared unlikely to rule out geofence warrants altogether. Justice Brett Kavanaugh, a Trump appointee, worried about handicapping investigators when a large percentage of murders and violent crimes are never solved.

“When it comes to the reviewing judge, we don’t micromanage in second-guessing what the issuing judge did so long as it doesn’t exceed, you know, certain bounds that we’ve set forth,” Kavanaugh said.

By the end of the two-hour argument, the justices were rethinking their own privacy settings.

“I need to check my location services settings, plainly,” Barrett said. “Not that I’m going to commit crimes, but it does seem to me like Google does give your information away.”

“I suggest you have IT do it,” Sotomayor responded.

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