“The technology may be novel, but the constitutional problem it presents is not,” Mr. Unikowsky wrote in a court filing. “The potential for abuse is breathtaking: The government need only draw a geofence around a church, a political rally or a gun shop, and it can compel a search of every user’s records to learn who was there.”
A person’s location history, which can be reviewed, edited and deleted, is private data stored in a password-protected account, Mr. Chatrie’s lawyer said. The lawyer argued that even if Mr. Chatrie had agreed to share it with Google, he had not agreed to share it with the government.
The solicitor general’s office countered that Mr. Chatrie had voluntarily shared his location data with Google. Similar to a person’s bank or phone records, which are held by a business, the government argued that there is no expectation of privacy for information that someone chooses to share with a third party.
Plus, the administration contended that surveillance video showed Mr. Chatrie holding his cellphone just before the robbery, meaning he had chosen to keep it with him during the crime. Eric J. Feigin, a deputy solicitor general, warned the court against adopting Mr. Chatrie’s position. That view of the Fourth Amendment, he said, would be “debilitating” for investigators and impede their ability to solve kidnappings, robberies, shootings and other crimes.
Google says it stopped responding to geofence warrants last year, because the company no longer stores such data and instead keeps location data on each user’s device. But law enforcement has made geofence requests of other tech companies, including Apple, Lyft, Snapchat, Uber, Microsoft and Yahoo, meaning the Fourth Amendment questions before the justices remain relevant.
