PRESS RELEASE: EPIC Statement on Oral Argument in Consequential Geofencing Case before the Supreme Court

Washington, D.C. — On Monday, the U.S. Supreme Court heard oral argument in Chatrie v. United States, a case about the constitutionality of a controversial investigative technique called the geofence search.

EPIC wrote an amicus brief for the case on behalf of Law & Technology and Fourth Amendment scholars, in which we argued that the Court should affirm that the Constitution protects cell phone location data and does not allow the government to conduct broad searches for all devices in an area without particularized suspicion.

This case is important because it implicates privacy protections for data stored in cloud services and collected by consumer apps.

During oral argument, the Justices pressed the government on why searching the location records of all Google users in an area should not be treated like searching every safe deposit box at a bank.

Chatrie stems from the criminal prosecution of Virginia man, Okello Chatrie, who contends that the government violated his Fourth Amendment rights by conducting a geofence search that led to his eventual conviction for a 2019 bank robbery.

During their investigation into a bank robbery, officials sought a geofence warrant ordering Google to identify all devices that were within a 300-meter diameter of the bank with the hour of the crime and then catalogued everywhere those devices went for a total of two hours. Google produced information about nineteen users whose devices were initially identified in the geofence, and the government ultimately obtained account information about three Google users.

EPIC’s amicus brief explained that the specific geofence warrant in this case, and likely others, is unconstitutional because it leaves far too much discretion to investigators. Warrants need to be backed by a court finding of particularized probable cause for the places and people searched, but in many cases involving geofence searches, the judge only finds probable cause that a likely crime occurred at a particular location and time. This allows investigators to track many innocent people and force Google to identify them without further judicial process.

The Law & Technology Scholars brief that EPIC filed analyzed the question of voluntariness, explaining why users should not be understood to waive their Fourth Amendment rights just because they give apps permission to collect their location data.

Alan Butler, EPIC Executive Director and President:
“Today’s arguments underscored that the Supreme Court is weighing one of the most consequential privacy questions of the digital age: whether the government can use sweeping location data searches to identify a suspect.

“Geofence searches are an incredibly invasive investigative technique that threaten the Fourth Amendment rights of hundreds of millions of individuals. The Court should hold that the Constitution protects our digital data even when it is stored by an app or cloud provider. The Court should ensure that the highly sensitive records generated by our phones cannot be obtained without particularized suspicion and close judicial oversight.”

Please contact [email protected] with requests for further comment.

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