The ACLU's Response to My Post on the Fifth Circuit's Smith Ruling—And My Reply to the ACLU

A debate on a very important Fourth Amendment ruling.

I recently posted a long critique of the Fifth Circuit's ruling last week in United States v. Jamarr Smith, and specifically the court's ruling that Google's geolocation database is too big to search with a search warrant.  It remains to be seen what might happen with the case.  Just today, DOJ filed an unopposed motion asking for 60 days to file a petition for rehearing. Also, the court has withheld issuance of the mandate on the request of at least one judge.

With that pending, I'm delighted to feature a debate of sorts over the merits of the ruling. Jennifer Granick and Brett Max Kaufman, lawyers for the American Civil Liberties Union (ACLU) who are both very active litigating in this area, wrote to me today with an ACLU response defending the Fifth Circuit's ruling and asking if I might publish it here at the Volokh Conspiracy.  Jennifer and Brett are both outstanding lawyers, and I'm delighted to host a debate on this question. With their permission, I am posting their response to my post, followed by my reply below that.

Here is their response, published in full:

The Fifth Circuit's Supposedly "Bananas" Ruling that Geofence Searches are Unconstitutional Is Correct

Jennifer S. Granick & Brett Max Kaufman, American Civil Liberties Union

Last week, the federal Fifth Circuit Court of Appeals issued a unanimous opinion that "geofence warrants"—which sweep through hundreds of millions of account holders' location data in the hopes of ensnaring people who are estimated to have been near the scene of a crime—violate the Fourth Amendment. In a blog post on this site, Orin Kerr criticized the court's holding as "bananas." But if this kind of ruling is bananas, we'll happily take more of them by the bunch.

The Fifth Circuit's decision, in a case titled United States v. Smith, is a reasonable response to the Golden Age of Surveillance ushered in by companies' unprecedented capture of previously ephemeral and unknowable facts about us. The Fifth Circuit held that police may not trawl through a database of hundreds of millions of people's sensitive location histories in the hopes that they will be able to find people who were, according to Google's computers, in the vicinity of a crime at some point in the past. The government uses this technique, geofence searching, with increasing frequency. It pulls out of the cloud people whose phones are estimated to have been near the scene of a crime—even if the person was actually somewhere else. It looks not just for suspects, but also witnesses, ensnaring a subset of individuals destined for further law enforcement scrutiny.

The Fifth Circuit held that such an overbroad search is akin to the kinds of "general warrants" that the Fourth Amendment was intended to prohibit. As a result, no warrant can make this novel surveillance technique legal.

Considering the analog equivalents of this kind of dragnet helps explain why: For example, police might know that some bank customers store stolen jewelry in safe deposit boxes. If they have probable cause, police can get a warrant to look in a particular suspect's box. But they cannot get a warrant to look in all the boxes—that would be a grossly overbroad search, impacting the privacy rights of many people as to whom there is no probable cause. (In one recent case, the government actually tried something similar, but the Ninth Circuit rejected the attempt.)

Likewise, police might know that some people sell drugs out of their homes in a certain neighborhood. If they have a target (whether an address or a person), they can get a warrant to search a house. But they may not search all the homes in the neighborhood based only on the knowledge that illegal drugs were sold in the area.

Kerr raises four main objections to the court's reasoning in Smith.

First, Kerr says that Smith is inconsistent with United States v. Karo, a 1980s case in which the Supreme Court held that law enforcement needed to get a warrant to track a radio-tracking beeper, which the government had placed inside a can of chemicals to be picked up by a suspect, into a private area like a home or locker. The government contended that that it needn't get any warrant at all to conduct this kind of surveillance, because the Fourth Amendment's particularity requirement was a poor fit for a situation in which police could never name in advance where the beeper might go. The Supreme Court swatted away that argument by explaining that it was sufficient for particularity purposes to specify the "object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested."

If police can get a warrant for that kind of tracking, Kerr suggests, surely they can get one for geofence searches, too. The Karo Court, he says, rejected an argument that beeper searches could never meet the particularity requirement—and that rejection should apply to geofence searches, too.

But the argument Karo rejected was the government's, and it was aimed at persuading the Court that particularity requirement was such a bad fit that the Fourth Amendment shouldn't regulate its beeper surveillance at all. Rather than permit unsupervised, warrantless beeper surveillance, the Court "articulated a way to draft warrants to allow the surveillance." But that is far cry from the argument the Fifth Circuit was evaluating in Smith—an argument from the defendants that geofence searches are so broadly invasive that they are akin to the long-reviled general searches banned by the Fourth Amendment entirely.

Not even the government, in its opposition brief on appeal, thought Karo was relevant enough to the geofence warrant issue to cite it even once.

Karo's facts are not analogous to geofence searches. While the final destination of a beeper tracker is unknown, police are tracking a particular object in real time. The government has possession of the object and installs a beeper. Only a few people subsequently will take possession of the object and it will only travel to a few places, as the police follow it. The police know what the object is, why it is relevant to the crime under investigation, who is likely to take possession of it, and for what criminal purpose.

But the Google location history database at issue in Smith contains location data from "592 million individual accounts". With geofence searches, all the police know is that a crime took place in the past, and where. Google's location history database is entirely comprised of constitutionally protected intimate location information, enabling comprehensive and retroactive surveillance of hundreds of millions of people. When the government searches the location database, it is searching through all of that information, after the fact. The people affected are all the people in the database, not just those whose information is a potential match.

Further, what the government learns is much more extensive than the location of a Karo-style beeper. When conducting a geofence search, the government doesn't even know whether the suspect's data will actually be found in the database—not that the government cares, since they are often not only looking for suspects, but for witnesses, too. The search will almost certainly rope in people who were not near the crime or merely passing by, due to the imprecision of some of the location data that Google collects. The government obtains information potentially revealing personal activities, habits, and associations about any number of people—suspicious or not. The breadth and technology involved in geofence-type database searches make them a whole new ballgame, worlds away from planting and tracking a beeper placed in a can of chemicals intended for use in drug trafficking.

Second, Kerr maintains that that the Fifth Circuit opinion clashes with United States v. Carpenter. In Carpenter, the Supreme Court held that police need a warrant to seek an identified suspect's cell phone location history. Of course, like geofence data, cell phone location data resides in a company's giant database. Kerr takes this to mean that any search through a massive database of location data must be permissible with a warrant. But there is very little in common between the targeted query pulling up one suspect's records in Carpenter, and the dragnet search for anyone whose phone was in or near a 24-acre area in Smith. Police can ask an email provider to turn over a particular person's messages with a valid warrant, but that doesn't mean police can direct the company to search through every email of every user in the hope of finding someone who was discussing a crime. And of course Carpenter did not address, let alone reject, a general warrant argument like the one at issue in Smith. To the contrary, the Court took pains to remind us that "The Founding generation crafted the Fourth Amendment as a response to the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity."

Third, Kerr argues that whether the identity of a suspect is known at the time of a search is constitutionally irrelevant. That is generally true—some valid warrants are of course intended to gather evidence to identify a suspect. But that doesn't mean that all such searches are constitutional. In each of the hypothetical examples Kerr gives, there is a target—an account controlled by an unknown user.

In any case, the lack of a known suspect in a particular case is not what the Fifth Circuit complained about. Rather, the Fifth Circuit was describing the geofence search technique itself as an inherently suspicionless dragnet where police never have a target:

In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts—for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search.

That observation seems plainly correct to us.

Fourth, Kerr's last point is that the Smith decision may have implications for surveillance conducted by national security agencies, which regularly search through gigantic repositories and streams of data that include the private information of Americans. He predicts that we will soon read in the paper that the opinion has interfered with some presumably worthwhile national security surveillance program as a roomful of very worried national security lawyers, presumably with furrowed brows, struggle to figure out how to comply.

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because of Smith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation's security, but that is what the anonymous source will suggest.

Don't believe it. National security lawyers excel at exploiting legal loopholes to justify secret programs and insulate them from judicial scrutiny. We find it extraordinarily hard to believe that they will read the Fifth Circuit's opinion in an unnecessarily overbroad and self-defeating fashion to require the executive branch to shut down one of its ongoing national security surveillance programs. Instead, as they usually do, the lawyers will find a way to justify the program to themselves, even if only by saying that the Fourth Amendment applies differently to foreign intelligence surveillance than to criminal investigations. Nonetheless, advocates of Big Surveillance will still repeat the leaked, manufactured concern about national security to ensure it hangs over courts' future efforts to consider and apply constitutional protections to the hundreds of millions of individuals whose private lives are exhaustively documented in ones and zeros in gigantic corporate for-profit databases.

When it comes to national security surveillance, the government's litigation tactics are designed to prevent courts from reaching incredibly important Fourth Amendment questions, like the one in Smith, on the merits. In criminal cases, for example, the government has a long track record of improperly withholding notice of foreign intelligence surveillance from defendants. In civil challenges to national security surveillance, the government has aggressively relied on the standing and state secrets doctrines to seek dismissal at the earliest stages of litigation.

Following the Supreme Court's lead in cases like Riley and Carpenter, courts around the country have been striving to adapt constitutional privacy protections to novel surveillance enabled by advanced digital technologies. Things like conversations, reading, and travel used to be ephemeral, and were not recorded, and all-access has never been the rule. But now, law enforcement feels entitled to access all these new repositories of private information however it can. While it may be the job of government lawyers to push for access, it's the role of the Constitution and the courts to push back. That's what we see the Fifth Circuit doing in Smith.

Thanks very much to Jennifer Granick & Brett Max Kaufman for their response on these issues.  Here's my reply, taking the order of the four points I made in my initial post. (Because the reply to me was written in the authors' official capacities as ACLU attorneys, I will respond to them a bit formally as "the ACLU," instead to Jennifer and Brett.)

(1) On the Importance of United States v. Karo

First, the ACLU notes that the government did not raise Karo in its brief:

Not even the government, in its opposition brief on appeal, thought Karo was relevant enough to the geofence warrant issue to cite it even once.

It's true that the government doesn't cite Karo.  But that brings up a very interesting aspect of the litigation more broadly: Reviewing the briefs filed in the case, I don't think either side really briefed the question that the panel ruled on—whether the Google file was too big to be searched.  Reading the defendant's initial brief, the statement of issues announces that it will argue that geofence warrants are unconstitutional categorically (p.2).  But the brief never actually develops that argument, as far as I can tell.  It states the argument at the. top of page 35, and hints at it in footnote 8. But it mostly argues other issues, such as that this particular geofence warrant was too broad.  The reply brief is similar. It alludes to such an argument in passing (p.4), but it doesn't make it.  No amicus briefs were filed in the case, either.  From what I can tell, there was no serious briefing on the warrant issue that was resolved by the Fifth Circuit's opinion.

Indeed, after now listening to the oral argument, I don't think I hear the argument being made by Smith's counsel there, either.  At about the 8-minute mark, Judge Ho asks defense counsel to say specifically why this was a general warrant.  Smith's counsel does not respond that this was a general warrant because the Sensorvault database was too big, Instead, counsel makes a different argument, that the warrant sought too much data to be seized and handed over to much the government.

I should be clear that the issue of Sensorvault being too large to be searched does get discussed during the oral argument. Judge Ho raises and presses this claim during the questioning of the government, starting at about the 17:45 minute mark. And at the 23 minute mark, Judge Ho describes that claim as what, in his words, "I think" is the argument defense counsel is making. But unless I'm missing it, that's the first time it is discussed, at least more than in passing.  In the rebuttal, defense counsel again focuses on the scope of what the government was looking for, not raising the size of Sensorvault or argues that the file was too large to search. As far as I can tell, the only time defense counsel talks about that is in the last minute of the argument, when Judge Ho asks counsel to respond to the government's responses to Judge Ho's earlier questions on that.

So it's true that the government did not cite Karo.  But Karo is important as a response to a "no warrant can be issued" argument, and that's not an argument that appears to have seriously briefed by either of the litigants.

Back to the ACLU post.

ACLU next argues that Karo is distinguishable.  The key difference, the ACLU claims, is that the geofence warrant can yield a lot more personal information than the tracking beeper did in Karo.  Assuming this is true, though, I don't know how it's relevant to whether a warrant can be obtained.  The arguments the ACLU is making are arguments about why the data should be protected under the Fourth Amendment in the first place.  Assuming the panel was correct on that, those points are justifications to require a warrant, not a reason to refuse to allow a warrant.

But what about the idea that the search here is just too invasive?  It seems important to note that warrant clause does not impose a general requirement that searches be narrow. As Justice Scalia stressed for the Supreme Court (overturning 9-0 a Judge Reinhardt decision from the Ninth Circuit) in United States v. Grubbs, particularity requires two specific things:

The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters.

That posed a big problem in Karo, because there really was no known "place" where the search was occurring. But in this case, everyone knows that the warrant is being sent to Google, and that it is conducting the search there, albeit of a particular very large database.  So if anything, I would think the place problem was greater in Karo than it was here.

(2) Comparisons to Email Searches and the Relevance of Carpenter

The ACLU also argues that searching through Sensorvault is very different from a traditional kind of Internet warrant search, such as for an individual email account. They write:

Police can ask an email provider to turn over a particular person's messages with a valid warrant, but that doesn't mean police can direct the company to search through every email of every user in the hope of finding someone who was discussing a crime.

This mixes apples and oranges, it seems to me. It treats an argument about the place to be searched (the database) as if it were an argument about the things to be seized (any discussions of a crime).

Here's the more interesting question, I think: If an email provider put all of its emails in a single database, with the different emails from different customers together, could it search for the emails from a single account with a warrant?

Let's think this through. Imagine a provider that has all of its emails of all of its customers in a single huge database file containing emails from all users.  Let's say there are one million customers, with a billion emails total stored in that one database.  Here's a made-up snapshot, below, of part of what the file might look like, showing you just part of a few of the billion entries in the database.  The left column is the file number, from one to a billion.  The next column is the account name, next the to address, then the date, then the subject line. Imagine other columns to the right, just out of view, with main text, attachments, and the like:

Imagine the government came to the provider with a warrant for emails in Orin's inbox that were delivered on December 6th between 11:01 and 11:03.  Because all of the provider's emails are in a single massive database file, the provider would get those specific Orin emails by doing a search through the entire file of one billion emails for those matching the query Account="Orin@" and Date="12/6 at 11:01 to 11:03".

Is that a particular warrant that satisfies the Fourth Amendment?  I would think so.  But under the Fifth Circuit's reasoning—reasoning that I gather the ACLU agrees with—I think that would be an illegal general warrant, as it would mean searching through a million people's emails for those responsive files.  Think about it: It's like rummaging through one million homes, the argument would run, with an entire city's worth of private virtual homes being scanned through and closely scrutinized by powerful supercomputers for a match with the relevant criteria— the specific account name (Orin) and time (12/6, from 11:01 to 11:03).

But I confess I don't get this.  As a practical matter, when the searching criteria is sufficiently narrow and specific, a non-response is the same as a non-search.  If a particular email was Brett's, or Jennifer's, why should the fact that it was technically scanned by in a query looking for Orin's messages matter?  As I wrote in my earlier post, the filter is everything: How you set the aperture determines what the scope of the search is.  If you set the filter to only "hit" if the account element is "Orin@,"the size of the file through which it scans happens does not seem the relevant question.  From a Fourth Amendment standpoint, it seems to me, the result is a just seizure of the Orin@ account—and if the messages are then examined, a search of that account. But why should it matter whether the provider happens to store its database as a single database, or as multiple databases, or as lots and lots of small databases?  I don't think the Fourth Amendment regulates database administration.

Also, allow me a super-minor, technical, bordering on hopelessly-pedantic point: Although Sensorvault has files belong to an estimated 592 million people globally, I gather that the great majority of those people are non-U.S. persons who have no Fourth Amendment rights under United States v. Verdugo-Urquidez (1990).  If about 1/3 of Google users opted into Location History, and if we say (to guess) that 80% of people in the United States have some kind of Google account, we're probably in the ballpark of more like 90-100 million people who have the capacity to have Fourth Amendment rights who have their data in the database (and would therefore have rights against geofencing if the Fifth Circuit was right, and the Fourth Circuit was wrong, on the search question).  Obviously, that's still an enormously large, super big, way huge database.  And maybe, depending on your theory of virtual place, including data of people with no Fourth Amendment rights still makes your constitutional "place" bigger.  But I gather the 592 million figure is global users, not those with Fourth Amendment rights.  (Hey, I told you it was a technical and bordering on hopelessly-pedantic point.  I mean, you were warned. Okay, moving on.)

The ACLU also notes that no one argued in Carpenter that no warrant could actually be obtained for large databases.  I mean, yes, that's technically true.  But if you think back to cases like Carpenter and Riley v. California, the availability of warrants to get the information was absolutely crucial to both of them.  The Court adopted the pro-privacy position in those cases because the pro-privacy position enabled warrants.

To my mind, this raises the question of whether the ACLU's position against warrants is short-sighted.  Granted, I'm not in the position of giving advice to the ACLU. But it seems to me that there's a crucial tension between warrants-are-needed arguments and even-a-warrant-isn't-enough arguments in Fourth Amendment law. Historically, allowing warrants has been key to expanding what is covered by the Fourth Amendment.  The switch from Olmstead in 1928 to Berger and Katz in 1967, changing from a rule that wiretapping is not a search to wiretapping being a search, is an interesting example. Wiretapping is a way to obtain mere evidence— the words of those engaged in crime.  But in the window from 1921 until early 1967, in Warden v. Hayden, the Supreme Court said warrants for mere evidence were not allowed.  This is conjecture, but I think that partially explained the switch from Olmstead to Berger and Katz: Wiretapping was not a search at a time when no warrant could be obtained to engage in wiretapping, and then was treated as a search very soon after changing the warrant rules in Warden v. Hayden to allow mere evidence warrants.

There's a tension there, I think. The more you argue that a warrant cannot be used to conduct a kind of surveillance, the harder it becomes to argue that a warrant is needed to conduct that kind of surveillance in the first place.  As a practical matter, the privacy-maximizing position may be pro-warrant.

(3) The Fact That There Is Never A Known Target. 

The ACLU also suggests that geofence warrants are unique because there is never a target.  It quotes the Fifth Circuit's passage where it says the following:

Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search.

But that's how a lot of warrants work.  This is nothing new. The Supreme Court emphasized this in Zurcher v. Stanford Daily:

Search warrants are not directed at persons; they authorize the search of places, and the seizure of things, and as a constitutional matter they need not even name the person from whom the things will be seized.. . . The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought.

So, for example, you can have a warrant to go seize drugs in a house, even if you don't know who owns the house, who put the drugs there, or where the people are.  To be sure, arrest warrants are about people.  But search warants are about places.

(4) The Scope of the Ruling.

Finally, in response to my last point, about the extraordinary significance and scope of the ruling, the ACLU suggests that sneaky government lawyers, especially in the national security arena, will fake concern with the case but get around Smith somehow, even possibly by engaging in sneaky tactics or even wrongdoing to do it.  I served as a lawyer at the U.S. Department of Justice myself, and that is not at all my experience with lawyers in the executive branch generally, or at DOJ specifically.  But even among those who think that is how government lawyers work, note that the ACLU does not seem to contest that the reasoning of the Fifth Circuit's decision would, if taken seriously, have tremendously far-reaching effects.  We disagree only on whether that is a bug or a feature.

Comments

[Michael P]

The email database example seems inapposite to me. The search warrant in this case was not looking for particular metadata to select messages from a known account, but for identify information regarding all phones in a 24-acre area (in both cases within a particular time period). That’s much less particular than the “Orin@” email selector as to the target, and more like a general search on subject lines.

The idea that a search warrant meets the Constitution’s particularity requirements because it names a huge database of location data as the place to be searched is at odds with Carpenter:

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

The focus on the individual is important here, and indicates that this kind of location data cannot be particularized with such a large person-locstion database being “the place to be searched”.

[JoeBlow]

I think you are caught up on “known account” when it seems both Orin and the ACLU recognize that you don’t have to know which account.

The question is whether the search is limited. And it seems just as limited if the query only pings locations and then only identifies accounts for hits as it would be if the reverse were true and it only queries the account and then pulls the location for hits. At least to the software, it is doing exactly the same thing in both scenarios, it’s just looking at a different column in Orin’s example. And it’s the software we are hypothesizing is the state actor conducting the search.

[Michael P]

And you're getting caught up in technical details while ignoring the relevant legal (individual rights and process) questions. An individual can challenge a warrant naming their property or account as the place to be searched, but they typically won't know that their rights are impacted if the place to be searched is listed only as a 24-acre area or as Google's data centers.

[Noscitur a sociis]

That is incorrect. An individual cannot typically challenge a warrant unless evidence obtained pursuant to it is used in a prosecution against them—at which point they’re generally entitled to be informed of the warrant and have the opportunity to challenge it. That is, after all, how these defendants were able to challenge the warrant at issue in this case.

[Noscitur a sociis]

The email database example seems inapposite to me. The search warrant in this case was not looking for particular metadata to select messages from a known account, but for identify information regarding all phones in a 24-acre area (in both cases within a particular time period). That’s much less particular than the “Orin@” email selector as to the target, and more like a general search on subject lines.

First, I don’t see how running a search on a different field in the database (location instead of sender) is any less particular. And I don’t think that’s a defense of this holding. The Fifth Circuit’s rationale, as far as I understand it, isn’t the parameters of the search: it’s that to conduct it, Google is “searching” the information of each of its account holders. That would be equally true in the email example.

The idea that a search warrant meets the Constitution’s particularity requirements because it names a huge database of location data as the place to be searched is at odds with Carpenter:

Post-Carpenter warrants describe the place to be searched pretty much the same way as this one: information possessed by a large companya database of times different devices engaged in certain activity. I’m not aware of anyone suggesting that’s a problem.

And the key takeaway, I think is that after describing the incredibly intrusive nature of the search, Carpenter said that a warrant was needed, not that the evidence couldn’t be obtained at all. If that’s the case, it follows a fortiori that the much less invasive search was permissible.

[StagsBBQ]

The email example is bad for a couple of reasons:

First, it’s a bad comparison to the geofence warrant. A request to search the emails of a particular person isn’t the same thing as what’s at stake in a geofence warrant. The example Prof. Kerr offers certainly seems to satisfy the spirit of particularly describing the place to be searched (Prof. Kerr’s inbox) and the thing to be seized (every email in a two minute period on a particular day). However, that’s not a good analogy to what’s being requested by the geofence warrant. An analogy that’s more similar to a geofence warrant would be if it was a search returning every single email in the database sent in that two minute period. That kind of search definitely feels like a general warrant.

Secondly, and setting aside the third party doctrine for a moment, the fact that this information sits in a single database obscures the fundamental issue. Pretend the database didn’t exist. The location data that the government wishes to search still exists on every single mobile phone. In the absence of this database, would Prof. Kerr argue that a warrant that calls for individually searching the location data in each and every phone in the US was valid? (I hope we can all agree that would be an impermissible general warrant!) Can the government then evade its Fourth Amendment restrictions simply by passing the buck to a third party because it happens to have a database of this information?

[Noscitur a sociis]

Can the government then evade its Fourth Amendment restrictions simply by passing the buck to a third party because it happens to have a database of this information?

Yes, if evidence is known to be in a particular place, the government can search for it there, even if it couldn't search for it if it didn't know that it was in that place.

[Stephen Lathrop]

An online database is not a place. It is in fact ubiquitous.

[David Nieporent]

The data is stored on a computer somewhere.

[Stephen Lathrop]

Nieporent, you suppose only one computer is implicated in the collection, storage, and distribution of personal location data from all over the nation?

Reflect on that. Literally millions of computers (telephones, etc.) are involved. Only some of them belonging to Google, but all of them, apparently, either reporting to Google, or accessing Google computers—but certainly not just one Google computer. Why do you suppose Google collects personal location data, except to make use of it generally on its entire network, and to sell it to others.

[David Nieporent]

Can the government then evade its Fourth Amendment restrictions simply by passing the buck to a third party because it happens to have a database of this information?

No; it can satisfy its Fourth Amendment restrictions by doing so.

[Brett Bellmore]

"Here's the more interesting question, I think: If an email provider put all of its emails in a single database, with the different emails from different customers together, could it search for the emails from a single account with a warrant?"

Are you actually unaware that email accounts link to emails sent, not just emails received?

[Noscitur a sociis]

What makes you think that Prof. Kerr is unaware of this, or that it has anything to do with his point?

[Brett Bellmore]

Reviewing this, I just misread him to be distinguishing emails "from" vs "to" an account, sent and received. Looking again, that was a goofy way of reading it.

[John F. Carr]

There was some discussion in the thread of the original post about how computers do these searches. The appellate judges may have a vision of people combing through a warehouse and looking at each paper to decide whether it is responsive. If method matters, the trial court needs to get facts in the record. If method doesn't matter large private databases are immune from search by any means.

An analogy: When a cop calls in a license plate, that is not a search of every license plate of the state and country. The computer looks at one record, or a few if you ask for a fuzzy match.

[Michael P]

Police don’t need a warrant to check whether a specific license plate has been reported stolen, what make and model it is registered to, whether the owner has outstanding warrants, and so forth.

On the other hand, having a huge number of cameras recording license plate numbers and the associated times and locations (certain applications of automated licence plate reader, or ALPR, systems) has been argued or implied to implicate Fourth Amendment concerns. In the latter case, the concerns are because the date collection and later search are not specific to a single license plate.

Where specifically do you see the analogy with Google’s location database?

[John F. Carr]

A search for a small number of records in a big database is perceived as a search of a small number of records, not the entire database. This is independent of whether police need a warrant.

(I think all queries into driving records should be logged and made available to the target, unless a prior court order for good cause allows a specific inquiry to be kept secret for a limited time. The target can decide whether to sue under the DPPA or a state law cause of action.)

[Life of Brian]

But here the entire database is indeed being searched. Page 10 of the opinion says in so many words the database isn’t indexed on location (or at least not in a way that’s helpful here):

Google is not capable of storing data in a way that enables it to search a specific area, nor does Google know which users have saved their Location History prior to its search. Id. at 915. Thus, for every single geofence warrant Google responds to, it must search each account in its entire Sensorvault—all 592 million—to find responsive user records. It cannot just look at individual accounts.

And as I think about it, I don’t find this all that surprising. “Capable of” is probably judicial gloss, but it’s not clear what utility there would be to indexing by coordinates other than to support exactly the sort of privacy invasion at issue here.

[Michael P]

(moved)

[Brett Bellmore]

Of course the government doesn't need a warrant to look at its own records. The question, I guess, is what the government is allowed to do in order to compile those records.

I'm entirely sympathetic to the concerns about omnipresent public surveillance leading to everything you do outside of a private space being recorded and searchable by the government. I think that, as a policy matter, it ought to be prohibited, or at least limited to special areas like the interiors of government buildings.

I am, however, rather uncomfortable with the arguments that the Constitution, as written, actually prohibits it. I'm just not seeing sound constitutional reasoning there; The Constitution simply doesn't contemplate this situation, or have anything to say about it.

[Michael P]

Is the third party doctrine written into the Constitution? Or the exclusionary rule, the good faith exception to it, and so forth? The inevitable discovery doctrine?

There are a lot of parts of Fourth Amendment law that are not in the Constitution's text, and I think it's quixotic to pick this as the right windmill to tilt at for that cause.

[Brett Bellmore]

Yes, there are an awful lot of Fourth amendment doctrines that are not anchored in the text, and I don't see a good reason to add to them. They're generally a product of the Court's own reluctance to properly enforce the 4th amendment.

Admittedly, this would be a case of the government extending the 4th amendment, rather than creating ad hoc exceptions or work arounds to compensate for exceptions. But it still looks more like policy making than constitutional reasoning to me.

[dwb68]

See below. the Geofence request covered 15 city blocks (98,192 sq met), and the results are 58 city blocks (378,278 sq met). Hard to see how thats particularized.

[David Nieporent]

They’re generally a product of the Court’s own reluctance to properly enforce the 4th amendment.

Unfortunately for Area Man Passionate Defender Of What He Imagines Constitution To Be, the 4th amendment involves "policy making." It only bans unreasonable searches.

[dwb68]

The Smith geofence warrant was for 24 acres??

Way to bury the lede there with an important detail.

Hell no. 24 acres is a hunting expedition not a warrant. That's an entire neighborhood or three.

[Michael P]

Not only that, but according to records evidence quoted in the panel’s decision, Google aims for one-sigma (68%) accuracy of locations vs their confidence bounds on those locations. Depending on whether/how that is used in the geofencing search process, that raises some significant sensitivity and specificity concerns about the results. The opinion points out the false-positive problem inherent in that kind of accuracy.

The opinion gives different units, with more precision, for the geofence area:

However, as with any geofence
warrant, no specific Google accounts were identified in Section I of Attachment A; rather, the Attachment only specified specific coordinates
around the Lake Cormorant Post Office. The box created by those coordinates covered approximately 98,192 square meters.

[Michael P]

... And it actually gets a bit clearer that reality was worse than "24 acres" suggests:

Notably, Google’s search was much broader than that specifically sought by the warrant, producing data from a circular area that was approximately 378,278 square meters, not 98,192 square meters.

378278 square meters is 93.5 acres. According to the table in the opinion, two of the three phones in the report had locations accurate to about a 100-meter radius -- so about 32% of the time, they would have been more than a football field away from the reported position.

[JoeFromtheBronx]

I think the ACLU is correct about the difference in the scope of Karo and this case. The attempt to use Karo to set certain principles is understood. But, I think it is on a certain level ridiculous to compare the two. The two sides not addressing a specific question very well might not be the only reason why it didn't come up.

[Stephen Lathrop]

Can anyone remember an account of the apprehension of Kennedy assassin Oswald which contained enough detail that the dynamics of the search which found him could be understood? How about commonplace instances where perpetrators of heinous crimes are quickly apprehended after seemingly trivial traffic offenses, like getting pulled over for a burnt out tail light? Timothy McVeigh, for instance.

On the one hand, it's great to see efficient apprehensions of bad guys. On the other hand, there seem to me to be too many such vague explanations for particular arrests. They suggest that continuing surveillance of some people goes unmentioned, with phony cover-up tales used in public accounts, including in courts, to hide methods law enforcement routinely relies upon.

I have a concern that surveillance applied too continuously to specific targets—perhaps for years—creates genuine danger of false charges arising essentially by happenstance. It does not help that specificity and effort invested against a particular target over a long interval, without findings, implies a hostile motive at work to account for continuation of the surveillance.

Professor Kerr, is it justifiable to hide from the public methods relied upon by law enforcement to keep American citizens under surveillance?

[Noscitur a sociis]

What in the world are you talking about, and what conceivable connection does it have to this post?

[Stephen Lathrop]

Noscitur — You own bafflement is both my subject, and the connection to this post that you seek. The question raised in its broadest context is whether the 4A's protection against general warrants overcomes benighted prosecutorial opportunism, which is what I think you display in your response.

[Noscitur a sociis]

I apologize if I’m just too dense to understand, but I don’t. Are you suggesting that Lee Harvey Oswald, Timothy McVeigh, or the guys in this case were being secretly surveilled and that the government is lying about it?

[MatthewSlyfield]

A question for professor Kerr:

Assuming at least some geofence warrants are allowable, is there a point at which the geofence area becomes so large that it runs afoul of the prohibition on general warrants?

If your answer is yes, where would you draw that line?

[Noscitur a sociis]

I’m not Prof. Kerr (I swear!) but if you grant that a warrant is required, then there are surely limits on the area and time range they can cover. But I’m not sure particularity is the limiting principle here. The area and time windows, however expansive they might be, particularly describe the things to be seized. Rather, the limits would come from the requirement that there be probable cause that the sought information would contain evidence of a crime.

[Stephen Lathrop]

Noscitur — You permit yourself to think metaphorically, to refer to a database as a place—and thus insist by metaphor you have met the critically necessary requirement for a limit on a warrant.

Opponents ought to be equally entitled to insist metaphorically. They can point out that an online database is metaphorically ubiquitous, and thus not a particular place, but every place. And thus the warrant is a general warrant. It is a general warrant which empowers that particularized things may be searched for everywhere.

[Noscitur a sociis]

I have absolutely no idea what “metaphorically ubiquitous” means or how it would describe a database. But there’s nothing metaphorical about the target of this warrant: it was directed towards Google, a real company, at its real headquarters in the real Northern District of California.

[MatthewSlyfield]

"Opponents ought to be equally entitled to insist metaphorically. They can point out that an online database is metaphorically ubiquitous, and thus not a particular place"

Which is in no way the argument I am making.

1. a data base is not a place, particular or otherwise.
2 I would consider the place to be searched the geographic area bound by the requested geofencing.

[Drewski]

I'll read it if they delete about 75% of the adjectives and all the cute rhetorical garbage like scare quotes. Right now it reads like a slightly unbalanced comment on Reddit. If they have a point, they shouldn't be hiding it behind all that blather.

[ReadMore]

30-plus paragraphs and then a "Read More" link? Up yours, Orin!

[Orin S. Kerr]

Next time it will be 50, thanks to you.

[bacchys]

I don't think I agree with the ACLU's "never" position, but Prof. Kerr's argument seems to me more wrong than theirs.

On the specific person issue, the purpose of the geofence warrant is to identify persons who were at a particular place during a period of time. Their identities is what the warrant is for: the thing for which the government is searching. So it's a little disingenuous to say search warrants don't usually name the person whose premises or belongings are being searched. It ignores the purpose of the geofence warrant.

Under limited circumstances, I think these warrants are constitutionally valid. On J6, for example, those who were inside the premises of the Capitol without authorization were engaged in a crime. Other than filtering out members of Congress, staff, and others authorized to be there, the government isn't fishing for suspects. In a different circumstance- say the government wanting a geofence warrant to determine who was present at a bus stop when a stabbing occurred- the government is going to scoop up a lot of innocent people with such a search. It may not be quite a general warrant, but it's far closer to that than the usual search warrant.

[Noscitur a sociis]

In a different circumstance- say the government wanting a geofence warrant to determine who was present at a bus stop when a stabbing occurred- the government is going to scoop up a lot of innocent people with such a search.

Doesn’t that depend on the facts of the individual case? Here, for instance, they got three accounts in their area and time windows, and two of those were the robbers.

Note also that the list of accounts Google provides is anonymized: it just has a meaningless account number to group the activity. So the response doesn’t tell the government anything about where any identifiable person was.

[David Nieporent]

In a different circumstance- say the government wanting a geofence warrant to determine who was present at a bus stop when a stabbing occurred- the government is going to scoop up a lot of innocent people with such a search.

But searches don't "scoop up" people at all. All the government is going to do is get a list of names of people whose phones were at that place at that time.

[Noscitur a sociis]

They don't even get a list of names! They get a list of numbers which can later be associated with particular accounts.

[David Nieporent]

Fair enough.

[Stephen Lathrop]

Maybe fair as a legal finagle, but sophistry as an argument if the numbers are as particularized as names which correspond to them.

[Noscitur a sociis]

You don’t think there’s any difference from the government seeing a location listed next to your name and seeing it next to a number that isn’t connected to you in any way?

[Stephen Lathrop]

Noscitur: "later be associated with particular accounts."

How is that consistent with, "a number that isn't connected to you in any way?"

[Noscitur a sociis]

The opinion includes a screenshot of what the results look like, which hopefully will illustrate the point.

Google’s production is anonymized: it doesn't, on its own, tell the government anything about where any specifically identifiable person was. If the government wants information that would allow it to associate a given account with a given person, it has to go back to Google and get it.

[Randal]

That's exactly was makes this an illegal search for probable cause, i.e. a general warrant / fishing expedition.

[Krayt]

Fourth, Kerr's last point is that the Smith decision may have implications for surveillance conducted by national security agencies, which regularly search through gigantic repositories and streams of data that include the private information of Americans. He predicts that we will soon read in the paper that the opinion has interfered with some presumably worthwhile national security surveillance program as a roomful of very worried national security lawyers, presumably with furrowed brows, struggle to figure out how to comply.

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because of Smith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation's security, but that is what the anonymous source will suggest.

This is the senator or agency head standing there in front of cameras, lamenting the awfulness of crimes, and how they need these intrusive tools.

Well, you know what's a lot worse than prosaic crime? The crime of dictatorship, where they have free reign to surveil at will and maintain their iron boot stepping on a human face, forever.

Do not build the tools of tyranny. Then they can't possibly be abused.

[Brett Bellmore]

The idea that the national security agencies actually comply with the law in practice to begin with is sort of silly.

[Noscitur a sociis]

In a blog post on this site, Orin Kerr criticized the court's holding as "bananas." But if this kind of ruling is bananas, we'll happily take more of them by the bunch.

I'm old enough to remember when the Fifth Circuit ignoring Supreme Court precedent to reach a policy result they liked for reasons not contained in the parties' briefs was supposed to be a bad thing.

[Noscitur a sociis]

(In one recent case, the government actually tried something similar, but the Ninth Circuit rejected the attempt.)

This interpretation seems, at best, a little tendentious, given that:

1. The Ninth Circuit did not suggest that the seizure of all of the safe deposit boxes violated a particularity requirement, and

2. Two of the three judges conspicuously declined to join Judge Smith's concurrence suggesting that an inventory search of boxes is impermissible in this context, strongly suggesting that a search of all of the boxes would have been permissible if the FBI had followed its standard written inventory policy.

[Randal]

The Ninth Circuit did not suggest that the seizure of all of the safe deposit boxes violated a particularity requirement

But they did hold that searching them for evidence violated the warrant. And whether or not an inventory search were permissible, they held that an evidentiary search of any individual box would’ve required a warrant for that specific box.

Given all that, it seems pretty clear that if the warrant had purported to allow searches of all the boxes for evidence, the Ninth Circuit would've held the warrant invalid for overbreadth i.e. lack of probable cause to search each box individually.

[Lee Moore]

“As a practical matter…. a non-response is the same as a non-search.”

Shuffling the ball to the next cup in plain sight there!

Let’s do old tech. We want to read any letters sent by Orin Kerr to the Enormous Widget Co since 1 Jan 2024.

If EWC keeps a file of all correspondence received by calendar year, then in order to identify the Orin Kerr stuff you have to search EVERY letter in the file, for the signature line. Then you can read those letters. But the fact that you didn’t want to and didn’t read anybody else’s letters doesn’t mean they were not included in the search. You had to search through them to find out whether they came from Orin Kerr.

But if EWC also keeps a correspondence received ledger noting date received and name of sender, then you don’t need to search the correspondence file itself. Just the ledger. So long as you’re only trying to identify the OK stuff.

Reading it once identified would require you to search the correspondence file itself. But if EWC pulls out the OK letters from the correspondence file and puts the OK stuff in a new file and hands it to you, then the places to be searched are the ledger and the new “only OK” file.

But can you order EWC to create the new file ? And does getting EWC to search its whole file for you cut the 4A mustard ?

[Randal]

Sorry Orin, I think the ACLU has you on this one.

Their argument isn't about the size of the file. You're falling into the Bill Gates trap: interpreting laws through the lens of engineering technicalities rather than in practical terms. If your legal argument ever involves describing a database layout, you're doing it wrong. Technical implementation details are not what laws are about.

Searching for a specific person's emails is very different from searching through all emails for any which reference a specific person. One is a search based on probable cause. The other is a search for probable cause.

The search in this case is a search for probable cause. That's what makes it a general warrant. There is no probable cause until the search hits.

[Noscitur a sociis]

That’s not the position that the Fifth Circuit took, nor is it what the ACLU is arguing. Nor should they have: there is very obviously probable cause to think that the information being requested would contain evidence of a crime.

[Randal]

there is very obviously probable cause

Only because a crime was committed. A crime by itself isn’t enough, because that would justify general warrants. You can’t just say a crime was committed, therefore we have probable cause to search all the houses in the neighborhood.

You also can’t just say a crime was committed, therefore we have probable cause to search just one house in the neighborhood at random.

It also doesn’t matter that the houses are far apart or close together. You can’t say that a crime was committed, so we have probable cause to search all the safe deposit boxes at this specific bank… even if there’s reason to believe that evidence of the crime would be uncovered that way.

As the above examples show, probable cause and the particularity requirement are connected. The probable cause itself must be particular. Now, particular to what? As the bank example shows, it’s not particular to a physical place ‐‐ a bank’s safe is particular in that sense — or to a particular custodian — again, the bank is a custodian of all the boxes.

Rather, particularity requires that probable cause exists to support a specific theory of the case, and the search targets evidence to support the theory. Usually that’s a particular suspect, but often the suspect is unknown. Even then, the theory must be specific in that the domain of suspects is a priori constrained by the search parameters, and not dependent on the results of the search. If I have a warrant to search a specific car, that car has a well-defined owner, whether I find anything or not. A hotel room has a short list of recent occupants, etc. etc. Whereas a bank’s vault has potentially hundreds of customers, and a search thereof is almost certainly designed to figure out which customer is the suspect. That’s not particularized.

The Constitution uses “place” as the natural concept to get at this result. Generally, a specific place only has a nexus to a few suspects, so searching it is unlikely to be a fishing expedition. But there are exceptions, like all the safe deposit boxes in a vault, or all the email accounts at Google. The “place” requirement needs to be interpreted as to its original purpose rather than literally.

I admit that even this analysis doesn’t cleanly resolve the instant case. The best analogy I can think of is like searching everybody’s footlocker at the local gym to see if their shoes match the footprints at the scene. And I think that counts as a general warrant for the same reason as the safe deposit boxes. There’s no probable cause to search any particular footlocker until you find the matching shoes in said footlocker.

[David Lawson]

With respect to the size of the search, Prof. Kerr, you are mixing apples and oranges. A search on a huge database of emails by email address is nothing like a geofence search of googles location data.
The first search will automatically exclude all email content that don't match the email address key, not touching any other data field. The result set will only contain emails for the given email address.
The Geofence search will return all persons whose phones entered the geofenced area. The result set returned will contain a great many different users' data.
I think that is what is meant by "size".

[arpiniant1]

>>When the government searches the location database, <<

The government never searched the database
They never even asked to
They never looked at or gained access to millions of people's information
I think Google could require that the cops get a warrant to protect them from any potential litigation.

Example:
crime is committed with a sledgehammer
Cop walks into hardware store
'Sell any sledgehammers lately?'
'Uh, yeah Jim Smith bought one just yesterday'
just askiing a question,
they just asked google a question
or
'computer says we did, but I cannot see who'
cop needs a warrant to access the hardware stores database

[Commenter_XY]

Professor Kerr, thanks for your posts on 4A. Really, this citizen appreciates it.

I understand your point re: filtering. That said, I think the thrust of the 5th circuit opinion is correct. The Founders wrote 4A to prohibit exactly this kind of general warrant by the Fed government. These are fishing expeditions; that crosses the line (to me).

Please keep posting on 4A. It is very important now.

[pavon]

It seems to me that it hinges on the sensitivity of the information you use to narrow down the applicable records in the database, not the size of the database.

Consider a bank where each of 5000 safety deposit boxes has a unique quote on the front door. The police have probable cause that specific evidence is located in a deposit box with a specific quote on the door, and request a warrant for such.

Now consider the case where the unique quote is not written on outside of the door, but the inside.

The later is a more invasive search than the former. Both have the same number of possible boxes, 5000, and both result in the same number of results, 1. The high number of possible boxes doesn’t exclude the first search from being acceptable, and the small number of selected boxes doesn’t justify the breadth of the second search. And in neither case does it matter whether the box is owned by a suspect of the crime, just that there is probable cause that specific evidence exists in the box. What matters is that in the former the box to be searched can be determined by public information, but in the later the box can only be selected using information in which hundreds of people have an expectation of privacy.

Likewise a database will consist of many pieces of information some of which are more sensitive than others, some of which have an expectation of privacy and some of which don’t. In your email database example, requesting emails sent from a specific residential IP is less invasive than requesting all emails whose contents contain certain keywords. Again even though they both query the same size database, and may give similar numbers of results.

So I guess what my argument boils down to is that when searching a database, the description of how to determine which records are applicable is part of the “place” to search, and the information in those records to return is the “thing” to seize. By this criteria some warrants for database queries can be a general warrant if they cannot define a reasonably specific set of records to include without searching the private fields of those records. While other database queries are perfectly fine, including the examples you are concerned would be impacted by this ruling, like looking at IP addresses in packet headers to determine which packet contents to search.