Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules

An important case on "The Digital Fourth Amendment"

Regular readers may recall my prior coverage of United States v. Chatrie, a case on the Fourth Amendment implications of collecting Google location history records—location records stored by Google about where logged-in Google users are located—which in the Chatrie case were used to identify a bank robber.  The Fourth Circuit handed down its ruling in the case yesterday, and I thought I would give a quick summary and offer some thoughts.

My 2022 post explained the technology, the facts, and the trial court's ruling, so please go there for the details, as I'd rather not repeat it all here.  (Go ahead, really, I'll wait. Okay, back?  Now let's continue.). As you'll recall from my 2022 post—which you just read, right?— the trial court in this case (1) assumed that collecting the records was a Fourth Amendment search; (2) adopted a very narrow view of how broadly warrants for such records can extend, under which the Chatrie geofence warrant was plainly unconstitutional; and then (3) upheld the collection of records anyway under the good-faith exception to the warrant requirement because it was such a novel issue.  My 2022 post was skeptical of this, suggesting that no search may have occurred in the first place and that warrants should be a lot broader than what the district court concluded.

In the new ruling, the Fourth Circuit rules 2-1 that no search occurred. Judge Jay Richardson wrote the majority opinion, and he was joined by Judge Harvie Wilkinson, Judge James Wynn dissented.  Here's the key reasoning from the majority opinion by Judge Richardson:

Relying on Carpenter, Chatrie argues that the government conducted a search when it obtained his Location History data from Google. We disagree. Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties. Both rationales apply here. Accordingly, we find that Chatrie did not have a reasonable expectation of privacy in the two hours' worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.

Start with the nature of the information sought. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206. The government requested and obtained only two hours' worth of Chatrie's Location History data.16 By no means was this an "all-encompassing record of [Chatrie's] whereabouts … provid[ing] an intimate window into [his] person[al] life." Carpenter, 585 U.S. at 311, 138 S.Ct. 2206. All the government had was an "individual trip viewed in isolation," which, standing alone, was not enough to "enable[ ] deductions about 'what [Chatrie] does repeatedly, what he does not do, and what he does ensemble.' "Beautiful Struggle, 2 F.4th at 342 (quoting Maynard, 615 F.3d at 562–63). The information obtained was therefore far less revealing than that obtained in Jones, Carpenter, or Beautiful Struggle and more like the short-term public movements in Knotts, which the Court found were "voluntarily conveyed to anyone who wanted to look." Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). A record of a person's single, brief trip is no more revealing than his bank records or telephone call logs. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 742, 99 S.Ct. 2577. Chatrie thus did not have a "legitimate 'expectation of privacy,' " in the information obtained by the government, so the first rationale for the third-party doctrine applies here. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Furthermore, Chatrie voluntarily exposed his location information to Google by opting in to Location History. Id. at 315, 138 S.Ct. 2206. Consider again how Location History works. Location History is an optional setting that adds extra features, like traffic updates and targeted advertisements, to a user's experience. But it is "off by default" and must be affirmatively activated by a user before Google begins tracking and storing his location data. J.A. 1333–34. Of course, once Google secures this consent, it monitors his location at all times and across all devices. Yet even then, Google still affords the user ultimate control over how his data is used: If he changes his mind, he can review, edit, or delete the collected information and stop Google from collecting more. Whether Google tracks a user's location, therefore, is entirely up to the user himself. If Google compiles a record of his whereabouts, it is only because he has authorized Google to do so.

Nor is a user's consent secured in ignorance, either. See Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (explaining that the third-party doctrine applies to information "knowingly shared with another"). To the contrary, the record shows that Google provides users with ample notice about the nature of this setting. Before Google allows a user to enable Location History, it first displays text that explains the basics of the service. The text states that enabling Location History "[s]aves where you go with your devices," meaning "[t]his data may be saved and used in any Google service where you were signed in to give you more personalized experiences." It also informs a user about his ability to view, delete, or change his location data. A user cannot opt in to Location History without seeing this text.

So unlike with CSLI, a user knowingly and voluntarily exposes his Location History data to Google. First, Location History is not " 'such a pervasive and insistent part of daily life' that [activating it] is indispensable to participation in modern society." Carpenter, 585 U.S. at 315, 138 S.Ct. 2206 (quoting Riley, 573 U.S. at 385, 134 S.Ct. 2473). Carpenter found that it is impossible to participate in modern life without a cell phone. Id. But the same cannot be said of Location History. While Location History offers a few useful features to a user's experience, its activation is unnecessary to use a phone or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are somehow indispensable to participation in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary. Cf. Riley, 573 U.S. at 385, 134 S.Ct. 2473 (noting that, as of 2014, "a significant majority of American adults" owned smartphones). Thus, a user can decline to use Location History and still participate meaningfully in modern society.

Second, unlike CSLI, Location History data is obtained by a user's affirmative act. Carpenter noted that "a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up." 585 U.S. at 315, 138 S.Ct. 2206. But Location History is off by default and can be enabled only by a user's affirmative act. A person need not go off the grid by "disconnecting [his] phone from the network … to avoid" generating Location History data; instead, he can simply decline to opt in and continue using his phone as before. See id. Thus, "in [every] meaningful sense," a user who enables Location History "voluntarily 'assume[s] the risk' " of turning over his location information. Id. (quoting Smith, 442 U.S. at 745, 99 S.Ct. 2577). So the second rationale for the third-party doctrine applies here, too. The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he "t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." Miller, 425 U.S. at 443, 96 S.Ct. 1619. He cannot now claim to have had a reasonable expectation of privacy in this information. See Smith, 442 U.S. at 743–44, 99 S.Ct. 2577. The government therefore did not conduct a search when it obtained the data.

I think this is the correct analysis.  Indeed, it's what I argue for in my forthcoming book, The Digital Fourth Amendment, where I discuss what was then the pending Chatrie case. (I'm told that I'll be to add a quick update to the manuscript to include the new ruling.)

According to Judge Richardson, this does not mean that access to Google location history records is categorically outside the Fourth Amendment.  That is true because Fourth Circuit precedent has adopted the so-called mosaic theory, the idea that whether and when Carpenter kicks in and calls data collection a search depends on how much data collection has occurred.  This warrant asked for only a brief period of records, just a two-hour span, and the majority concludes that was not enough to trigger a mosaic:

Although not couched under this label, Beautiful Struggle articulated a version of what one scholar calls the "Mosaic Theory" of the Fourth Amendment. See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012). The Mosaic Theory asks whether the government has observed enough of a person's physical movements to deduce intimate details about his private life that could not be learned from simply observing his isolated trips or activities. Under this theory, access to a person's short-term movements does not invade his reasonable expectation of privacy. Such information reveals only the locations he visits and nothing more, which is something that law enforcement could learn from traditional means of surveillance anyway. Beautiful Struggle, 2 F.4th at 341; Jones, 565 U.S. at 429, 132 S.Ct. 945 (opinion of Alito, J.). But much more is revealed when the government accesses a larger swath of a person's movements, as this "enables deductions about 'what a person does repeatedly, what he does not do, and what he does ensemble,' which 'reveal[s] more about a person than does any individual trip viewed in isolation.' " Beautiful Struggle, 2 F.4th at 342 (alteration in original) (quoting Maynard, 615 F.3d at 562–63)). In other words, it exposes "not only his particular movements, but through them his 'familial, political, professional, religious, and sexual associations.' " Carpenter, 585 U.S. at 311, 138 S.Ct. 2206 (quoting Jones, 565 U.S. at 415, 132 S.Ct. 945 (opinion of Sotomayor, J.)). Society does not expect that law enforcement would or could gather such a wealth of intimate details about an individual's personal life from his physical movements. Jones, 565 U.S. at 430, 132 S.Ct. 945 (opinion of Alito, J.). So when the government crosses that line, it invades a person's reasonable expectation of privacy and conducts a search.

The dissent misses Beautiful Struggle's distinction when it catalogues the kind of private details that could be learned from two hours' worth of Location History. According to the dissent, a two-hour snippet of Location History could reveal a wealth of otherwise unknowable and intimate information, like a person's "romantic rendezvous," "medical appointments," or "afternoon and early-evening routines." Diss. Op. at ––––. But the theory adopted in Beautiful Struggle rejects this exact proposition. To be sure, a two-hour snippet might show that someone visited an apartment, swung by a doctor's office, and then popped into a gym. Yet glimpsing this single trip in isolation could not itself enable sound deductions about that person's habits, routines, and associations. For example, he may have visited the apartment because he is having an affair, but he equally could have been seeing a friend for coffee, touring a housing upgrade, or buying a couch off of Facebook marketplace. Similarly, he might have visited the doctor's office for his appointment, yet he also could have been dropping off his spouse or collecting information about the doctor's services or needs. And observing someone enter a gym once certainly cannot confirm whether he is a gym rat or simply riding a New Years high. Only by observing that person's movements over a longer period could the police reliably deduce his habits, routines, and associations. No such deductions could accurately be made from a mere two-hour glimpse.

Applying this theory here leads to a straightforward conclusion. As the dissent correctly observes, Location History has capabilities much like GPS data and CSLI. But unlike in Carpenter or Jones, the government in this case obtained only two hours' worth of Chatrie's Location History data. Although this brief glimpse into his whereabouts may have revealed the locations he visited, it was plainly insufficient to offer insight into his habits, routines, and associations. So the government did not invade his "legitimate 'expectation of privacy' " by obtaining it.Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Judge Wynn dissented, arguing that Carpenter can be best understood as creating a multi-factor analysis for what is a search that looks to underlying shifts of government power:

Leading scholars agree that Carpenter created a factor-based test derived from those considerations, though they disagree on which factors are the most important or mandatory. E.g., Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357, 363, 369 (2019) (recognizing Carpenter created "new, multi-factor test" to analyze an individual's reasonable privacy expectation against intruding technology and "herald[ed] a new mode of Constitutional analysis"); Susan Freiwald & Stephen W. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. L. Rev. 205, 219 (2018) (multifactor analysis was "clearly central" to the Court's holding); Tokson, The Aftermath of Carpenter, supra, at 1830 (describing the "Carpenter factors" and concluding from a survey of cases that "[a] multifactor Carpenter test has begun to emerge from the lower court[s]").

In reaching this conclusion, scholars rely on the Court's analysis and its concluding sentence, which reads: "In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection." Carpenter, 585 U.S. at 320, 138 S.Ct. 2206.

In my view, such a factor-based examination is the correct interpretation of the Court's opinion. Again, central to the Court's analysis was one overarching principle: the need to maintain historical Fourth Amendment protections against expanding police surveillance capabilities. Throughout its analysis, Carpenter extensively emphasized that the government historically could not conduct intrusions as comprehensive, retrospective, intimate, and efficient as those made possible by technological advancements like CSLI. See, e.g., id. at 304–05, 138 S.Ct. 2206 (stating the Fourth Amendment analysis with respect to digital data must be "informed by historical understandings" of reasonable searches (quotations omitted)); id. at 305, 138 S.Ct. 2206 (discussing historical expectations); id. at 312, 138 S.Ct. 2206 (retrospective information was traditionally "unknowable"); id. at 320, 138 S.Ct. 2206 (stating that the police's use of CSLI infringed upon the Framers' intent in enacting the Fourth Amendment).

This rationale reflects the Court's understanding that rapid technological advances have created shifts "in kind and not merely in degree from the technology of the past." Ohm, supra, at 399. These shifts required the Court to adjust its analysis of the Fourth Amendment to "preserv[e the] degree of privacy … that existed when the Fourth Amendment was adopted," as it has with technological changes in the past. Carpenter, 585 U.S. at 305, 138 S.Ct. 2206 (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038); see id. at 305–06, 138 S.Ct. 2206 (describing this philosophy in the Court's Fourth Amendment jurisprudence and citing cases); id. at 318, 138 S.Ct. 2206 ("When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents."); see also Orin S. Kerr, The Digital Fourth Amendment: Implementing Carpenter 10, 16–19 (USC Law Legal Studies Paper No. 18-29) (describing this phenomenon in the Court's jurisprudence as an "equilibrium-adjustment"); Denae Kassotis, The Fourth Amendment and Technological Exceptionalism After Carpenter: A Case Study on Hash-Value Matching, 29 Fordham Intell. Prop. Media & Ent. L.J. 1243, 1302 (2019) (explaining that Riley and Carpenter reflect the Court's understanding of the exceptional nature of technology and adaptation of the law to protect privacy).

Put simply, the Court declined to extend existing doctrines to exempt CSLI from Fourth Amendment protections based on the principle that it first recognized decades earlier: previously unimaginable technology that reveals unprecedented amounts of personal information requires new rules. Carpenter, 585 U.S. at 310–14, 138 S.Ct. 2206 (citing the Jones concurrences and rejecting the "mechanical" application of old doctrines); accord Riley, 573 U.S. at 393, 134 S.Ct. 2473 (stating that comparing a physical search to a cell phone search is like "saying a ride on horseback is materially indistinguishable from a flight to the moon"). Thus, "[t]he beating heart" of Carpenter "is its deep and abiding belief in the exceptional nature of the modern technological era." Ohm, supra, at 399.

By that standard, Judge Wynn argues, a search occurred: "A faithful reading of Carpenter—not to mention common sense—compels the conclusion that when the police obtained Chatrie's Location History data, they engaged in a Fourth Amendment search. That conclusion is evident upon evaluating how the Carpenter factors apply to the Location History intrusion in this case."

So what does this new decision mean?  How important is it going forward?

I think Chatrie is medium-important.  Its importance lies in it being a key reminder that not all location data is protected under the Fourth Amendment after Carpenter.  As I wrote back in 2022, it was puzzling that a lot of lower courts did not want to address this; they wanted to jump straight to how broad warrants could extend over these kind of records.  Chatrie is a key reminder that there's an earlier step.  The collection of location records may not be a search at all.

At the same time, Chatrie's practical importance is undercut greatly by Google's announcement, almost immediately after the Chatrie oral argument, that it is going to phase out Google-stored location history records.  Just based on the public record, it appears that Google was following the argument closely.  My guess is that, upon seeing that the panel might rule that no search occurs in these cases, Google decided to eliminate its own possession of those records so governments could not compel them from Google without a warrant.

Whether that was the goal, that is the effect.  And it means that the panel's ruling likely won't have a major impact going forward.  Granted, I'd guess that Google or other providers will have other location records that the government might be able to compel in the future.  But iI would guess those records won't be the kind of clear opt-in records that Location History records are, which means that collecting them is more likely to be a search.  And if that's right, subsequent particularly question of how broadly the search can go under a warrant remains, and it will be critical then.

Finally, note that the split over whether the Fourth Amendment recognizes a "mosaic theory" at all lives on. As I have argued (and as the majority generously noted), I don't think the theory is coherent or workable.  Twelve years after I first made that argument, lower courts are pretty divided on the question.  Some courts have adopted the mosaic, while others reject it on workability grounds.  The Supreme Court is on a long holiday from search and seizure law right now.  But if the Justices should some day wish to address some of the lower court disagreement on what the Fourth Amendment means, whether to recognize the mosaic theory will be an important question for the Court to answer.

 

Comments

[ducksalad]

I’d like to see a much simpler definition of “search” for 4th Amendment purposes: anytime the government uses methods that could not be used, legally AND successfully, by any private citizen.

So in this case…. If I told Google there was some woman I wanted to find for unspecified personal reasons and asked them to give me her Location History. Would they let me have them? OK, fine, it’s not a search. Would they tell me no, that’s a violation of her privacy? Then it’s a search and the police either need a warrant or one of the emergency exceptions to the warrant requirement.

And (this should apply to both the 1st and 4th amendments) the focus should not be on whose rights are being violated. It should be on the government conduct the amendments were intended to stop.

Don’t ask whether the free speech belongs to an individual or to a corporation like Facebook. Ask, is the government trying to control speech? If yes, the default answer is “make no law”.

And in this case, don’t ask whether the data belongs to the person or to Google, who might consent. Ask, is the government trying to do something that meets the search definition above? If yes, the default answer is get a warrant..

[Brett Bellmore]

I agree. Third party doctrine is a crock. The only thing somebody else storing your data should change is who the government has to show the warrant to.

[Noscitur a sociis]

Can you briefly describe what you think the third party doctrine is?

[Brett Bellmore]

As summed up in Wikipedia,

“The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have “no reasonable expectation of privacy” in that information. A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant.”

So that, once Frank shares data with Bob, the police can go to Bob and demand the the data from him without a warrant, because the information has ceased to be subject to 4th amendment protections.

Rather than it becoming BOTH Frank AND Bob's 4th amendment protected property, as I think should be the case.

[Absaroka]

"the police can go to Bob and demand the the data from him without a warrant, "

Can the resident lawyers clarify whether the police can 'demand' the data without a warrant, or merely ask for it? My amateur sense was that they could ask, but not demand - Bob can choose to supply it or not.

For example, we've had local cases where the police ask for anyone in a certain area with a Ring doorbell or whatever to look for footage of such and such a vehicle between 2 and 3 in the afternoon on Thursday. My sense was they could ask, but could not compel (absent subpoena/warrant).

[Rossami]

If they phrase it as a subpoena, they can 'demand' it. The requirements for a subpoena are far below those necessary for a warrant.

However, the government can also go to a company and 'request' information while also noting (with varying degrees of subtlety) the company's dependance on or vulnerability to other government decisions. A government 'request' to most companies has about as much relationship to 'voluntary cooperation' as the guy with the heavy italian accent commenting on what a 'nice little store you've got here'.

And that's all before you consider industry-specific requirements (particularly banking and hospitality) where they can absolutely demand the information (in the strongest sense of that term) without even the meager protections of a subpoena.

[Noscitur a sociis]

As I anticipated, you misunderstand it. Providing information to a third party doesn't mean the government can demand it at will: it means that you don't have a personal right to resist their obtaining it. The government still needs to follow appropriate legal process to compel the third party to provide it (if they don't want to comply voluntarily or if, as in this situation, there's a statute precluding them from providing it voluntarily). That's why the government in this case got the search warrant that is being challenged in the first place.

[Absaroka]

Ducksalad: Let's say I'm your neighbor. The police knock on my door one day and ask if I have seen anything suspiscious. I say 'well, I heard something at 0200 a week ago and looked out and he was carrying a heavy rug and shovel out to his van, then he drove away and didn't come back until morning. Oh, and I haven't seen Mrs. Ducksalad since then'.

I think we all agree that I am free to tell the cops what I saw (or not, absent a subpoena). And the same for whatever my security cameras saw - I can voluntarily disclose whatever footage I have, but compelling me to disclose it would require a warrant.

In this case, I'm the third party. How is this different from Google disclosing location info, or a bank disclosing account details?

I think you would need to create some kind of contractual thing, where your neighbor/bank/google/doctor agrees they will only disclose when compelled. I think (corrections welcome!) such policies exist - priests, shrinks, and libraries come to mind. But I don't think you can extend such a policy by default to all third parties. If you did, witnesses to a bank robbery couldn't give a description of the robber.

[Drewski]

"anytime the government uses methods that could not be used, legally AND successfully, by any private citizen"

It sounds simple if you don't give it a few seconds' thought. Cop pulls you over, sees drugs in plain view. Private citizens can't pull over cars. Cop pats you down while arresting you for something else, finds an illegal weapon. Postal inspector finds a suspicious package in your mail. I can pull a million hypos out of my ass where cops should be allowed to search when private citizens can't, and any rule must either encompass those or have exceptions. I don't entirely disagree that 4A rules are off in the weeds a bit, but the solution isn't going to be 17 words long.

"So in this case…. If I told Google there was some woman I wanted to find for unspecified personal reasons and asked them to give me her Location History."

That's a terrible analogy and I think less of you for making it. Google would not provide location history to a cop who asked for unspecified personal reasons.

[Noscitur a sociis]

Ask, is the government trying to do something that meets the search definition above? If yes, the default answer is get a warrant..

Why? The Fourth Amendment doesn't say that you need a warrant to conduct a search.

[Noscitur a sociis]

I’d like to see a much simpler definition of “search” for 4th Amendment purposes: anytime the government uses methods that could not be used, legally AND successfully, by any private citizen.

A police officer has just arrested someone for murder, and suspects they might be a serial. The officer wants to run their criminal history and contact other police departments in the area for information about their prior record. You think that should require a search warrant?

[Riva]

Just don’t use Google. Problem solved.

[Rossami]

Sorry but I disagree. If this two hours' worth of Chatries Location History "was not enough to 'enable[ ] deductions about' what [Chatrie] does" then it could not have been useful to law enforcement in the first place. The very fact that they wanted the information is sufficient evidence that it enables deductions about what the person was doing.

Second, even though the 'third party' doctrine is established precedent, it is fundamentally wrong on its base assumptions. Demanding information from third parties should require the same warrant requirements as getting the information from the subject directly. This is emphatically not information that people are intentionally publishing to the world - this is information shared under incidentally and under promises of confidentiality in the process of carrying out other common daily activities.

The Constitution does not require us to live like 1780s farmers and tradesmen to enjoy any of our other rights. Why do you insist on imposing 1780s lifestyles on those who want their rights against unreasonable search and seizure?

[Noscitur a sociis]

Sorry but I disagree. If this two hours’ worth of Chatries Location History “was not enough to ‘enable[ ] deductions about’ what [Chatrie] does” then it could not have been useful to law enforcement in the first place.

This seems like pretty disingenuous selective quotation. Obviously the information showed something about a thing that Chatrie “does” that was of interest (be near the bank that he robbed at the time he robbed it): the point is that it didn’t allow the police to learn what he “does repeatedly, what he does not do, and what he does ensemble”.

[Jaypd]

As someone that agrees with judge Wynn, I don't really understand Prof Kerr or the majority's point. You really think that if people live in a surveillance state run by private companies, the government can demand that data without a warrant? Once you take away the warrant requirement, you're basically saying the government can grab data on all 350 million people so long as they only pull a few hours here and there? Why is that a world anyone would want to love in?

[mse326]

An important part of this was that it was voluntarily shared by the opt in of the defendant. In a surveillance state it isn't voluntary.

And the reason that the length matters is because such knowledge can also easilly be done with normal surveillance methods like LEO trailing a person. And that has been clearly determined not to be a search since basically the founding itself. It is only when it becomes more extensive, that normal old school surveillance simply would not have been able to do that as a practical matter.

Personally I think the doctrine on defining a search is overly complicated and narrow. I generally agree with ducksalad above. But this is probably right from current precedent (most of which is long standing, not recent). And frankly it isn't a ruling that leads to the dystopian hypo you presented

[Krayt]

The defendant shared it to participate in modern wonders, not to be part of a warrantless surveillance state.

The People should not have to give up their rights to participate in modern conveniences.

Just like certain gun types (and tasers) can't be banned just because they didn't exist during the Revoluionary War, so, too, your papers need not be tied to on your person or in your home. Computers and virtual worlds are what hold your papers, now.

[Currentsitguy]

I think the even larger concern is there is plenty of evidence that phones are collecting that data regardless of the user opting in or not.

[LawTalkingGuy]

I actually think the mosaic theory and Carpenter are fairly intuitive approaches to determining what a search is in the era of mass data collection. At the very least, they are no more challenging or incoherent than some of the other Fourth Amendment issues.

[David Nieporent]

Obviously, the main problem with mosaic theory is line drawing. (And yes, I realize that the vague "reasonableness" is always a consideration in 4th amendment cases. But there doesn't even seem to be anything approaching a consensus on a way to evaluate reasonableness in this context.)

[Noscitur a sociis]

I actually think the mosaic theory and Carpenter are fairly intuitive approaches to determining what a search is in the era of mass data collection.

That is exactly the problem: the mosaic all comes down to the judge's ex post intuition about how search-y things feel, rather than advance notice to law enforcement and everyone else about what you can and can't expect to be able to keep private.

[LawTalkingGuy]

Oh so it’s exactly like every single other fourth amendment doctrine. Also it’s not like the police always comply with the bright line rules they have clear notice of anyway.

[Noscitur a sociis]

Not really. Obviously search and seizure is highly case-specific, and there are a lot of judgment calls to be made about whether there is probable cause, how exigent circumstances really are, and so on. But there are also relatively clear rules for what you can do with, say, houses versus cars versus luggage versus bank records etc. Saying that you can look at (for instance) some digital location information, but not too much, is pretty unworkable.

[LawTalkingGuy]

Well I’ve worked on it and it seemed fine.

[Noscitur a sociis]

Can you elaborate?

[LawTalkingGuy]

Sure, without giving away too much, I have worked on applying carpenter and beautiful struggle in state court cases involving urban surveillance systems. The concern in Carpenter was the state getting an intimate picture of someone’s life in part drawn from the whole of their movements of an extended period of time. So a mosaic of their life. That’s a search.

Modern urban surveillance systems (like pole cameras, gunshot recordings, ring cameras, etc.) can, in the aggregate, use small bits of data to create a fuller picture. But it’s not necessarily a picture of someone’s whole life. It’s a mosaic of a particular moment. If that’s what they’re doing, piecing together where someone was at a particular moment from various bits of data, it’s not a search.

This is basically how the fourth circuit majority handled it. And I think that’s right overall.

[Noscitur a sociis]

I don’t think that’s really a refutation of my point. Obviously it’s workable for a judge, in the sense that the judge can reach a result that the judge finds satisfying (because it matches their intuition). It’s unworkable in the sense of being unable to give anyone who doesn’t fortuitously share the later-to-be-assigned judge’s intuition about what is and isn’t a search meaningful advance guidance what they can and can’t do.

(This includes criminal defendants, to their detriment, of course: if you don't have any reliable rubric of whether a challenge to a particular type of evidence is going to be successful, how do you meaningful evaluate whether to take a risk at an aggravated sentence to preserve your challenge?)

[LawTalkingGuy]

I think when we’re talking about the stuff that mosaic theory implicates we’re talking about sophisticated investigators, often those who routinely interact with lawyers anyway. This kind of surveillance and investigation isn’t done on the fly. The type of people needing the guidance are the exact type of people most comfortable with more amorphous and evolving standards.

By contrast, consider a local patrol officer. They have to actually make decisions on the fly and the fourth amendment tests designed by courts don’t always give them bright line predictable rules. Think about voluntary consent. How are the cops supposed to know when they’re creating an atmosphere of duress sufficient to render a consent search involuntary? Or why is it the case that plain sight and smell aren’t searches but plain touch is?

[LawTalkingGuy]

It’s also much less stupid than applying trespass theories and getting into hypotheticals about constables in carts as Alito notes in his Jones concurrence.

[NvEric]

A question arises as to why those in government / law enforcement need to gather information to such a new level of intrusion ? Likely, it's just because it's "out there" in such a quantity and detail as to be very useful to have. Expectations of privacy must increase with the increased amounts of data / information being recorded and stored.

That all communications are being recorded in Data Centers should have sparked outrage already. Location information adds to the domestic spy network ever more so to further the devolution of government and society too, by its very "taking" without consent of the individual and needs of the takers.

Excessive surveillance is poison to all parties and can not serve a healthy purpose. If there's so much need to use these modern intrusive methods to serval people, then the issue / problem is better served by addressing those things themselves and not the person, because the issue then becomes why is there an increasing breakdown of order - real or perceived.

Tools are great things as it defines humans like no other can including speech. But, to devolve by over doing it is no answer to future generations. Much like hydrologic mining washes away mountains to get bits of gold out, so too will intrusive gathering of information wash away the reasons for having organized societies.

[Noscitur a sociis]

A question arises as to why those in government / law enforcement need to gather information to such a new level of intrusion ?

I mean, I feel like they explained it pretty clearly in the opinion. Someone robbed a bank and they didn't have any other leads to figure out who it was.

[Absaroka]

Sure, in this case, but I don't think that is NvEric's point.

In days of yore, police solved crimes pretty effectively when purchases were made with anonymous cash, there weren't license plate readers, the bulk of the public wasn't walking around with trackable radios, etc, etc.

If the police wanted a list of everyone who had bought a copy of some book, they were SOL, because most book purchases were for cash at bookstores. Now you can just ask amazon, etc, etc.

I think it is a pretty big change. In some ways it's good - we all want bank robbers to get caught. But the tradeoff is there, and it is a tradeoff that existed when the BoR was written - the 4A protected crooks then as well.

Consider the various attempts over the years to require crypto back doors (unsuccessful, in this country). Is 'banning encryption w/o back doors for the govt will help catch robbers' sufficient justification to outlaw strong encryption?

So I don't have a good answer, but I think there are some really hard questions. 'It helped us catch a bank robber' isn't sufficient justification.

[Noscitur a sociis]

In days of yore, police solved crimes pretty effectively when purchases were made with anonymous cash, there weren’t license plate readers, the bulk of the public wasn’t walking around with trackable radios, etc, etc.

No, they didn’t. Or at least, they solved crimes a lot less effectively. 30 years ago, the police would have either had to use much less reliable evidence like criminal informants, or just let a crime like this go all together. Which they often did.

[Absaroka]

Can you elaborate? I have rather a different sense - that 30 years ago the police tended to solve bank robberies or murders or whatever pretty effectively. I sure haven't noticed a trend of fewer crooks being caught. Can you share the data that makes you think clearance rates have gone up a lot?

I do have a sense of penalties dropping; I don't recall seeing near as many '11 time felon Fred Smith, 28, was arrested after a high speed chase...' headlines as today. But this is just my sense from watching the news, so I'll gladly defer to data.

[Noscitur a sociis]

Pretty much all reactive crimes are solved by one or more of the following:

1. The police respond quickly enough to catch the perpetrator in the fact or immediate flight
2. The perpetrator is recognized by a witness or otherwise does something very obvious to disclose their identity during the crime
3. Non-DNA forensic evidence (fingerprints, ballistics, etc.)
4. DNA
5. Digital forensics

The latter two only came around in the last 30 years or so (DNA was around but much more primitive and expensive than now, and digital evidence only became useful as the underlying technology became more widespread).

What do you think the police could have done to solve this case absent something similar to getting this search warrant?

[Absaroka]

I'm not arguing the theory; I'm arguing the results: have your #4 and #5 resulted in an increased rate of clearing, say, bank robberies?

My sense is that they haven't; that the police used #1, 2, 3, and informants to good enough effect that clearance rates haven't changed much. I'm open to data arguing otherwise.

(I'm certainly willing to believe that for some specific crimes - stranger rape, for example - that specific technology like DNA can work wonders. But I don't think that DNA evidence in a rape case usually presents the kind of 4A tradeoffs that we're talking about here.)

[Peter Gerdes]

The whole necessary to participate in modern life standard can't be right. Indeed, it's quickly becoming the case that having a cellular connection isn't itself necessary. I mean it would be kinda inconvenient but given how widespread wifi has become it's not at all clear cell service is really necessary.

Cynically, I might suggest the standard is really: whether the justices would find giving it up a big deal.

But more and more there will be services that fall into the "a large majority of people use them" category and the court will need some way to decide if they are protected.

[John F. Carr]

Does "search" in the opinion mean "search" or "unreasonable search" (search requiring a warrant)? If it's the former I can't see why a one hour period and a three hour period should be treated differently. They are both searches or both not searches. I can agree that some searches might become constitutionally unreasonable only when continued for a long time. I would have been inclined to grant the motion to suppress reversed by the First Circuit in U.S. v. Moore-Bush (2022) (full time targeted surveillance with an unattended camera in a public place).

[Brett Bellmore]

"Does “search” in the opinion mean “search” or “unreasonable search” (search requiring a warrant)?"

Maybe I'm misunderstanding you, but the difference between reasonable and unreasonable searches isn't that only the latter require warrants, it's that the latter are actually prohibited altogether, while the former are permitted with a warrant.