Check out the amicus brief of X (fka Twitter) in the Fourth Amendment case involving geofence warrants now briefed and awaiting argument at the U.S. Supreme Court (Chatrie v. United States).
[Disclosure: this is one of ours (our colleagues Mark Miller and Amy Peikoff drafted the brief), so we’re not going to analyze it much.]
This is the Question Presented the Court is considering:
This case concerns the constitutionality of geofence warrants. For cell phone users to use certain services, their cell phones must continuously transmit their exact locations to their service providers. A geofence warrant allows law enforcement to obtain, from the service provider, the identities of users who were in the vicinity of a particular location at a particular time.
In this case, law enforcement obtained, and served on Google, a geofence warrant seeking anonymized location data for every device within 150 meters of the location of a bank robbery within one hour of the robbery. After Google returned an initial list, law enforcement sought—without seeking an additional warrant—information about the movements of certain devices for a longer, two-hour period, and Google complied with that request as well. Then—again without seeking an additional warrant—law enforcement requested de-anonymized subscriber information for three devices. One of those devices belonged to petitioner Okello Chatrie. Based on the evidence derived from the geofence warrant, petitioner was convicted of armed robbery.
The Court granted certiorari limited to the following question:
Whether the execution of the geofence warrant violated the Fourth Amendment.
Here’s a summary of X’s argument:
No one realized it then, but this Court’s rulings in the 1970s third-party doctrine cases, United States v. Miller, 425 U.S. 435 (1976), and Smith v. Maryland, 442 U.S. 735 (1979), ushered in a privacy-prohibition era for the twenty-first century. Henceforth, any at-tempt to selectively share information with one’s service provider would be treated, for Fourth Amendment purposes, as if one had shouted the information through a megaphone, perched upon the highest mountaintop, on worldwide livestream.
To this day, Miller and Smith remain essentially untouched, in part because legal scholars have argued in justification of the idea that an individual who shares information with a third party, even for a limited purpose, no longer has a “reasonable expectation of privacy” in that information. … And lower courts have at times leaned on those justifications for support. For example, Judge Wilkinson, concurring with the en banc Fourth Circuit, relied upon some of these normative arguments in concluding, “this case involved a straightforward application of [Miller and Smith].” The normative arguments given in support of the doctrine are not persuasive, however. There is a better way.
X Corp.’s suggestion is straightforward. Using the common law of contract as a lens to analyze the “secret agent” cases in which the third-party doctrine arose, one can see that this Court overextended in Miller and Smith a doctrine originating in the context of illegal contract to the context of ordinary business contracts between law-abiding citizens and their service providers. … Terms of service that promise to protect the privacy of information shared by users with their service providers should be treated as the functional equivalent of “no trespassing” signs on a possession perhaps more valuable than real property—our personal information (“papers” or “effects”). When privacy-protective terms of service are in place, terms that recognize users’ rights in the information shared, collected, or stored, government should typically get a warrant based on probable cause before gaining access to that information, including by means of “reverse searches” such as the geofence warrant at issue here.
Br. at 2-3 (citations omitted).
This brief and this case are good reminders that “property rights” are not limited to protection against takings, but include a much wider spectrum of limitations on government action such as the search-and-seizure limitations in the Fourth Amendment.
Fourth, Fifth, Eighth, and the Fourteenth Amendments. “They’re all part of it,” as our favorite fictional lawyer Dennis Denuto once sensationally argued.