The Volokh Conspiracy

Once in a while there is a court ruling on the Fourth Amendment that just makes my jaw drop.  The Fifth Circuit had such a ruling last Friday, United States v. Jamarr Smith. The case creates a split with the Fourth Circuit on one important issue, and it creates another split with the Colorado Supreme Court on an even more important issue.

The new case is about the Fourth Amendment limits of geofence warrants, which are warrants to access location information for users who have opted into having Internet providers retain location history.  The Fifth Circuit makes two important holdings. First, accessing any amount of geofence records is a search under an expansive reading of Carpenter v. United States. That's the issue that creates the split with the Fourth Circuit in United States v. Chatrie.  As I noted just a few weeks ago, Chatrie held that accessing such records is not a search in the first place, at least if the records sought are relatively limited in scale. The Fifth Circuit expressly disagrees.

Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance.  The government can't gather these kinds of online records at all, in other words, even with a warrant based on probable cause.  This holding conflicts with a recent ruling of the Colorado Supreme Court, People v. Seymour, and more broadly raises questions of whether any digital warrants for online contents are constitutional.

There's obviously a lot going on in this new decision.  Because I have blogged about the search issue several times before, including just last month, I want to focus this post instead on the second ruling—that geofence warrants are not permitted, even with probable cause.  I think this ruling is wrong, and that it's very important for it to be overturned.  This post explains why.

I. The Legal Context

First, some context.  When the government obtains a geofence warrant, the provider is ordered to provide data matching the geofence.  The warrant will call for the provider to hand over records made in a particular window of time and that recorded locations in a particular physical area.  The provider has a database consisting of location records of the accounts that opted into the service, and the provider—here, Google—searches through the database looking for a match with the records sought in the warrant.  Google calls this "Step 1" of its geofence warrant process.  If Google finds matches, it then goes through further steps that ultimately gives the government records that are responsive to the warrant.

Warrants have to be particular, and particularity requires two things.  First, the place to be searched must be particular.  For example, the government can't get a warrant to search an entire city block, or to search the entirety of an apartment building with lots of independent units. The place that is searched through has to be smaller than that, like a single business or (more often) a single house.   Second, particularity requires a particular description of the thing to be seized. The government can only take the evidence or contraband that is evidence of the crime.

Most discussions of particularity are about the particularity of the things to be seized.  Prior discussions of particularity for geofence warrants have focused on that. The issue has been, how broad can the warrant can be in terms of how much time and space the warrant can cover?  A geofence warrant orders the provider to hand over records that were of users in a particular area for a particular span of time.  A warrant might cover, say, within a mile of where the crime occurred, for, say, the 30 minutes before the crime occurred and up to 30 minutes after it.  But that kind of particularity is about how broad the records can be that the government gets.

The issue in Smith is about the first kind of particularity—the place to be searched.

II.  The Warrant Ruling

Smith rules that the database that Google has created, through which Google looks for matches with the data described in the warrant, is just too big to search.  Google combines all of its location records from all of its users worldwide into a single database, covering an estimated 592 million people, that it calls Sensorvault.  When Google queries that Sensorvault database, the Fifth Circuit holds, it is scanning through a "place" too big for the Fourth Amendment to allow.

Here's the entirety of the court's above-the-line analysis on this issue, with italics in the main text in the original:

When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. 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 is constitutionally insufficient.

Geofence warrants present the exact sort of "general, exploratory rummaging" that the Fourth Amendment was designed to prevent. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley, 573 U.S. at 403; Geofence Warrants and the Fourth Amendment, [Kerr note: A student note cited 10 times in the opinion] supra at 2519. In fact, Google Maps creator Brian McClendon has called these warrants "fishing expedition[s]," and explained that Google employees originally assumed law enforcement would only seek Location History data on specific people—a reality that did not come true. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 13, 2019), https://perma.cc/NCF3-H5DP. "Awareness that the government may be watching chills associational and expressive freedoms." Jones, 565 U.S. at 416 (Sotomayor, J., concurring.). And, when these core rights are at issue, the warrant requirement must "be accorded the most scrupulous exactitude." See Stanford, 379 U.S. at 485.

Here, the Government contends that geofence warrants are not general warrants because they are "limited to specified information directly tied to a particular [crime] at a particular place and time." This argument misses the mark. While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.

In sum, geofence warrants are "[e]mblematic of general warrants" and are "highly suspect per se." Geofence Warrants and the Fourth Amendment, supra at 2520; Amster & Diehl, Against Geofences, [Kerr note: A student note cited 13 times in the opinion] supra at 433– 34; Chad Marlow & Jennifer Stisa Granick, Celebrating an Important Victory in the Ongoing Fight Against Reverse Warrants, ACLU (Jan. 29, 2024), https://perma.cc/SC2R-S7PJ ("The constitutionality of reverse warrants is highly suspect because, like general warrants that are prohibited by the Fourth Amendment, they permit searches of vast quantities of private, personal information without identifying any particular criminal suspects or demonstrating probable cause to believe evidence will be located in the corporate databases they search."); Chatrie (App.), 107 F.4th at 353 (Wynn, J., dissenting) ("[A] [geofence] warrant is uncomfortably akin to the sort of 'reviled' general warrants used by English authorities that the Framers intended the Fourth Amendment to forbid.").

This court "cannot forgive the requirements of the Fourth Amendment in the name of law enforcement." Berger v. New York, 388 U.S. 41, 62 (1967). Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.

The court does go on to say the good-faith exception applies here and so there is no suppression, but that particular ruling is tiny potatoes.  It's the warrant ruling that is the serious biggie here.

III. My Take On Why The Warrant Ruling Is Wrong

I think the Fifth Circuit's warrant ruling is wrong— and not just wrong, but basically bananas.  Here are three reasons why, together with an explanation of why the stakes of the case are so high.

First, the ruling conflicts with the Supreme Court's precedents on warrant particularity.  The Fifth Circuit's decision relies heavily on two law student notes. It quotes an ACLU blog post. It also quotes a Wall Street Journal article.  But it doesn't even mention the Supreme Court's relevant caselaw on warrant particularity. And that authority, it seems to me, conflicts with the Fifth Circuit's ruling.

An especially relevant case is United States v. Karo, which considered the Fourth Amendment implications of installing and monitoring a location tracker in physical space.  The Supreme Court had previously ruled that no search occurred when the tracker recorded beeper locations while the beeper was out on public roads. Karo ruled that a search did occur when the tracker was brought inside a home and registered locations inside.

The relevant part of Karo is the Court's reply to an argument the government made about warrant particularity. No warrant was needed to use a tracker, the United States argued, because it wasn't possible to draft a particular warrant.  After all, the whole point of using the beeper is to find the location of the item that the suspect has, and thus to locate the suspect.  If you don't know where the beeper is, then you can't specifically describe the place to be searched. And if you can't specifically describe a place to be searched, you can't get a warrant. Thus, the surveillance should be allowed without a warrant, the government reasoned.

The Supreme Court responded by rejecting the premise and explaining how to draft a warrant in such cases to match the Fourth Amendment particularity standard:

It will still be possible to describe 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. In our view, this information will suffice to permit issuance of a warrant authorizing beeper installation and surveillance.

It seems to me that this controls Smith, too.  The warrant problem in Karo was a lot like the problem in geofence warrant cases.  The "place to be searched" is basically everywhere.  The search would occur wherever the beeper happened to go.  But instead of saying that no warrant could be obtained, the Supreme Court in Karo articulated a way to draft warrants to allow the surveillance.  The place to be searched was the object into which the beeper is to be placed, with the particularity being provided by the length of time for which beeper surveillance is requested.

I personally don't think geofencing is a search in the first place, as I have argued before.  But if we are to say that geofencing is a search, it seems to me that the approach from Karo should govern here.  Following Karo, the particularity should be provided by a description of the database into which the query is made, combined with the length of time (and amount of geographic space) the warrant covers.  We can argue about how long a period is permissible, and how big a geographic space is permissible.  But the idea that there is a cap on the size of the database seems hard to square with Karo.

Unfortunately the Fifth Circuit doesn't discuss Karo, so we don't know what the panel's response to it might be.

Second, the warrant ruling seems hard to square with Carpenter v. United States.  The notion that warrants cannot be obtained to search through particularly large databases also strikes me as hard to square with the Supreme Court's ruling in Carpenter, the case on which the Fifth Circuit's own search ruling is based.

Carpenter made two important rulings.  First, the Court ruled that access to at least long-term cell-site location information (CSLI) is a search.  Carpenter then took on a second issue: Does the government need a warrant to compel CSLI, or can it be compelled with just a subpoena?  The Court ruled that a warrant was required: Read More

Looks like an excellent project, and with top editors:

Launching JLEA
Journal of Law and Empirical Analysis

The Journal of Law and Empirical Analysis solicits papers that offer empirical evidence on questions of importance for the law. In addition to rigorous work permitting causal inference, it is open to qualitative research, intriguing correlations, registered reports, and methods papers.

JLEA provides a forum for interdisciplinarity and encourages contributions from lawyers, economists, political scientists, sociologists, criminologists, psychologists, computer scientists, and any other social or natural science.

The editors aim to provide the fastest responses possible consistent with peer review. In particular, our goal is to provide an initial decision in 6-8 weeks. Accepted articles will be published continuously as soon as they are ready.

The journal is completely open access, and there are no publication or article processing fees.

The first issue is available at https://journals.sagepub.com/home/LEX.

The editors in chief are:

Read More

Recently, a number of people on the right have endorsed Vice President Harris as the only way to save democracy. Relatedly, David French, says he is voting for Harris "to try to save conservatism." Not mentioned in French's essay is the Senator Schumer's nuclear bill, which would effectively overrule a decision by statute, and strip the Supreme Court of jurisdiction to review that law. French had asked Justice Gorsuch about Supreme Court "reform" during an interview, but the issue apparently did not move French. I suppose the only way to save democracy is to destroy the independence of the Supreme Court.

Perhaps if French came out and said we should elect Harris, but keep the Congress in Republican hands, that would forestall SCOTUS "reform," at least for a few years. But an endorsement of Harris, without opining on the state of Congress, all but ensures the filibuster is destroyed and jurisdiction striping and/or Court packing will pass. The American Bar Association recently endorsed a suite of "democracy" reforms, but as best as I can tell, has been silent on jurisdiction stripping. As Justice Thomas often repeats, we will come to regret crippling the last independent branch of government.

On that note, Harris spent about six years as Attorney General of California before becoming a Senator. By my count, she signed about fifty Supreme Court briefs--a mix of cert-stage briefs, merit-stage briefs, and amicus briefs. It is rare to have a presidential candidate with such a detailed record regarding constitutional law. I think it is useful to walk through these briefs to provide a sketch of how a President Harris would view the Constitution and the Court.

Read More

In a recent article in Law and History Review (paywall), Temple University historian Alan McPherson makes a bold claim. He identifies two fraught attitudes toward the rule of law: (1) "when the ends seem to justify the means officials could disregard statutes"; and (2) "statutes require no enforcement mechanisms because government officials should obey them out of patriotism." According to McPherson the first of these attitudes is "held mostly by conservatives and the second, mostly by liberals."

McPherson uses the lens of the Iran-Contra scandal to explore this claim, by he hardly limits himself to that example. What empirical evidence does he have for this claim? Social science research? Polling data? Nope. Just his subjective impressions based on his understanding of how Republican administrations have behaved versus Democratic administrations.

I laughed out loud when I got to his depiction of the Obama administration. "To be sure Democrats to were guilty…. The otherwise scandal free administration of Barack Obama dealt with enemy prisoners through illegal kidnapping and torture, and he ordered countless assassinations of foreigners withdrawn strikes – all crimes under US law."

This amused me for several reasons. First, the notion that the Obama administration was otherwise scandal-free is laughable. Some people have even written entire books about not just Obama administration scandals in general, but specifically how the administration was inclined to ignore the rule of law when "the ends seem to justify the means."

Second, during the Obama administration one heard over and over from the administration's defenders, almost all Democrats, that the Obama adminsitration was entitled to stretch or evade or ignore the law because Republicans were unfairly or unjustly or otherwise blocking his agenda. It's hard to believe that McPherson missed that.

Finally, the only instances in which McPherson acknowledges Obama administration rule breaking are things that the left objected to, one of which, drone strikes, was not at all clearly illegal. There are far clearer examples of the Obama administration violating the law (e.g.), many of which have been discussed on this very blog site.

Meanwhile, McPherson is certainly correct that the Trump administration was hardly meticulous in observing legal niceties. But the Biden administration has implemented and defended policies with no sound legal basis. The most famous examples are trying to forgive student loans without a sound statutory basis for doing so and trying to preserve the Covid-era ban on evictions with even less of a legal basis for it.

Okay, so a particular historian made a particularly poorly defended claim. My broader point is that one sees such claims routinely because the academy is such a political monoculture. Liberal historians outnumber conservatives by something like thirty to one. In a more politically balanced academy, as this article went through peer review one or more of the peer reviewers would likely have asked for much stronger evidence of McPherson's claims about attitudes toward the rule of law. But one is much less likely to challenge claims that appeals one's own prejudices, especially when the target is people whom one rarely meets in a professional setting.