What's At Stake in Chatrie v. United States

Summary

Podcast Summary: "What's At Stake in Chatrie v. United States"

Podcast: The Tech Policy Press Podcast
Date: May 17, 2026
Host: Jake La Perouse (Tech Policy Press Fellow; Deputy Director, Security and Surveillance Project, CDT)
Guest: Mike Price (Fourth Amendment Center, National Association of Criminal Defense Lawyers)

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Episode Overview

This episode explores the high-stakes privacy and constitutional issues at the heart of Chatrie v. United States, currently before the Supreme Court. The central focus is the government’s use of "geofence warrants"–reverse search warrants compelling companies like Google to provide location data from all devices within a particular area and window of time. Mike Price, an attorney for the defense, provides expert analysis of the legal nuances, historical context, and potentially profound implications for digital privacy, surveillance, and Fourth Amendment doctrine.

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Key Discussion Points & Insights

1. What Are Geofence Warrants?

• Definition and Process: Geofence warrants are "reverse warrants" where, instead of targeting a specific suspect, police request location data for all devices in a set area and time, hoping to identify suspects after trawling through the data ([02:41]).
• Scope: These warrants can sweep in potentially hundreds of millions of users globally, as about one-third of Google users have location history enabled ([05:52]).

2. Privacy Concerns and Constitutional Stakes

• Generalized Search: Price calls geofence warrants "a digital dragnet", likening them to the general warrants the Fourth Amendment was designed to prohibit ([02:41]).
• Lack of Individualized Suspicion: Law enforcement searches data of everyone in the area, not just suspects. In the Chatrie case, the sweep returned 19 individuals, later narrowed to nine, then three, only one of whom became a defendant ([07:26]).
• Sensitive Locations: Geofences often extend beyond their stated scope, including sensitive places like hospitals, homes, and churches ([08:08]).

3. The Future of Geofence Warrants After Google's Policy Change

• Google's Shift: Google now stores location history only on individual devices, not in the cloud, meaning future geofence warrants to Google are effectively moot ([10:38]).
• "Hold My Beer" Moment: "To which Google replied, here, hold my beer," Price says, describing how Google’s policy change asserts user ownership of data ([11:47]).
• Enduring Legal Questions: Despite Google’s update, the legal questions persist because:
  • Other companies may be approached
  • Similar "Franken warrants" still exist targeting cellular providers ([13:31])

4. Impact Beyond Google: Franken Warrants and Area Dumps

• Other Providers: Uber, Lyft, Snapchat, Apple, and cell carriers have all received such warrants ([13:31]).
• Timing Advance Data: Cell carriers use non-optional technical data to simulate a geofence, raising fresh privacy issues for all cell-phone users ([13:31]).

5. Fourth Amendment Doctrines in Question

• Third Party Doctrine: The longstanding rule that users lose privacy expectations for information shared with third parties is challenged here ([18:23]).
  • Price: "Obviously, we are arguing no," regarding whether storing your location journal with Google should forfeit privacy ([18:23]).
• Property vs. Privacy Interests: Defense argues users have a property right (ownership), not just a privacy interest, in their data ([18:23], [25:58]).

6. Relevance of Precedents: Jones, Riley, Carpenter

• Recent Supreme Court Cases: Each represented a leap forward in Fourth Amendment digital privacy, often with broad, sometimes unanimous decisions crossing ideological lines ([37:06]).
• Carpenter Decision: Required warrants for continuous cell phone tracking; this case seeks to apply similar reasoning to geofence data ([14:51]).

7. Court Dynamics and Judicial Reactions

• Making It Personal: Price underlines that framing the privacy risks in relatable terms resonates with judges, noting a story about Justice Barrett checking her own phone’s settings ([28:10]).
• Judicial Perspectives: Justice Alito and Thomas expressed skepticism about the case being ripe due to Google’s data policy change and the "good faith" doctrine ([29:34], [30:38]).
• Good Faith Doctrine Issue: The so-called "freebie" rule lets police off the hook for unconstitutional searches if made in "good faith", which can stall legal development ([30:38], [33:10]).
  • Quote: "By pulling a good faith ripcord, judges can avoid making rules, but those…would guide law enforcement for the next time" ([33:10]).

8. Broader Implications for Tech, Privacy, and Legislation

• Lag of Law Behind Tech: Courts’ slow pace compared to tech innovation means Fourth Amendment law is perpetually out of date, partly due to the overuse of the good faith doctrine ([33:56]).
• Legislative Relief Needed: Price calls for Congress to update privacy laws last touched in 1986 and supports pending reforms like the Fourth Amendment Is Not for Sale Act ([38:42]).

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Notable Quotes & Memorable Moments

• Reverse Warrant Analogy:
  "Now imagine that process in reverse. The police have no suspect...they want to go and search everybody's data and come up with a suspect later. It's like the process in reverse."
  — Mike Price ([02:41])

• Digital Dragnet Warning:
  "It's a digital dragnet. You know, the government shouldn't be able to search everybody all at once. They should have to identify particular accounts they want to search, develop probable cause, just like normal."
  — Mike Price ([02:41])

• Scope of Impact:
  "It searches everybody. Everybody who has location history enabled, which Google has told us is about 592 million people, about a third of all Google users."
  — Mike Price ([05:52])

• Personal Resonance for Judges:
  "Justice Barrett said that she had to go and check the location history settings on her phone. You know, that to me signaled that we had conveyed our message."
  — Mike Price ([28:10])

• On the Good Faith Doctrine:
  "It’s the freebie rule for police. It pretty much says that law enforcement should get a pass on the first unconstitutional warrant if they didn't know it was unconstitutional at the time."
  — Mike Price ([30:38])

• Judicial Ideology and Privacy:
  "These issues aren't political in the same way that maybe some of the other courts cases are...we have seen Justices who disagree on most things who come together over privacy issues."
  — Mike Price ([37:06])

• Legislative Call to Action:
  "Our privacy laws are in desperate need of an update...it shouldn’t be that we have to go to the Supreme Court to get a case every 10 years."
  — Mike Price ([38:42])

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Important Timestamps

• Intro and Case Background: [00:12] – [01:21]
• Definition and Mechanism of Geofence Warrants: [02:41] – [05:40]
• Scope and Sweep of Warrants: [05:52] – [08:52]
• Real-World Examples and Google's Policy Change: [09:59] – [13:31]
• Third Party Doctrine and Ownership of Data: [14:51] – [22:20]
• Court Argument Reflections and Strategies: [25:34] – [28:10]
• Good Faith Doctrine and Legal Lag: [30:38] – [35:41]
• Political/Law-Making Implications: [38:22] – [40:42]

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Flow and Tone

The conversation is lucid and accessible, with both host and guest conscious of explaining technical and legal concepts for a broad audience. Analogies ("digital dragnet", "hold my beer") and stories from courtrooms humanize the stakes, while a sense of urgency and concern over digital privacy permeates the discussion. The tone is engaging and informative, placing heavy emphasis on not just this specific Supreme Court case, but its broad relevance given rapid technological change.

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Conclusion

This episode provides a deep dive into the mechanics and high-stakes constitutional questions around geofence warrants, spotlighting how digital surveillance is challenging the boundaries of Fourth Amendment privacy in the U.S. The hosts and guest bring legal nuance, timely anecdotes, and policy context, making this episode essential listening for anyone interested in the future of privacy, technology, and law.

Transcript

[A]

Your film is now ready to be shown.

[B]

Good morning. I'm Justin Hendricks, editor of Tech Policy Press. We publish news, analysis, and perspectives on issues at the intersection of tech and democracy.

[A]

We will hear argument first this morning in case 25 112, Chatri v. United States. Mr. Yunakowski, Mr. Chief justice, and may it please the court.

[B]

At the end of last month, the Supreme Court heard oral argument in Chatri v. The United States. The case involves the use of a geofence warrant, which police use to demand information on all phones within a certain area and period of time. The case stems from a 2019 bank robbery in Virginia. Law enforcement used a geofence warrant to search Google's location history database, identifying Okello Chatri as a suspect. Chatri argued that the warrant violated the Fourth Amendment because it permitted the government to search data belonging to multiple people without individualized probable cause. The outcome of the case, which revolves around Fourth Amendment questions, could have profound implications for location tracking and privacy in the digital age. A decision is expected by the end of the Supreme Court's term in June. Tech Policy Press fellow Jake La Perouse recently had the opportunity to speak with one of the attorneys who represents Mr. Chatry. Here's Jake.

[A]

I'm Jake La Perouse. I'm a Tech Policy Press fellow for this year and also the deputy director of the Security and Surveillance Project at the center for Democracy and Technology. And I'm here today talking with Mike Price, who's an attorney working on what's been a really interesting and exciting privacy and surveillance issue this year, which is geofence warrants, a topic that recently was discussed before the Supreme Court. Mike, really, thank you for joining us. Could you introduce yourself to our audience? You know who you are and what kind of work you do.

[C]

My pleasure. Thanks for having me, Jake. I'm Mike Price from the Fourth Amendment center at the national association of Criminal Defense Lawyers. We work on cases just like this, provide litigation support to defense lawyers around the country dealing with issues of new technology and privacy.

[A]

Well, we're really happy to have you here today to be talking about this issue. So the case I mentioned that the Supreme Court recently heard is one called Chatri. And this case deals with a powerful surveillance technology, geofence warrants, that have recently in the last decade, emerged, but then become a huge, widely used surveillance tool. So to start us off, could you just briefly explain what geofence warrants are, why they're so sensitive and important, and what the biggest privacy dangers are from them?

[C]

Let's take one step back and Say, you know, geofence warrants are a type of what we call reverse warrants. And to understand that, imagine what you would think of as a regular warrant where the police identify a suspect and they establish probable cause to go and search their data, and they, they get a judge to sign off on that. The police go in with a warrant. Now imagine that process in reverse. The police have no suspect. They, they don't know who did it, but instead they want to go and search everybody's data and come up with a suspect later. It's like the process in reverse. And to do this in, in this case, we're talking about something called Google location history. That's a feature that Google has. About a third of Google users have it and opted in on their phones, about 592 million people. And it's a journal of where you've been. It's stored in your Google account, just like your documents and your photos and your email. And what happens is the government goes to Google and they say, well, tell me everybody who was around the scene of a crime at this particular time and this location, and they search all 592 million accounts to come up with that data. That's step one. Then they decide who they think they want to have more information on, and they lift the geographic restrictions. They get extra time. They can see where people are going to and coming from, and then they get more information and they say, well, tell me who these people are. Give me their subscriber information. That's the reveal. And step three. And so we're arguing here is that that location history data is private because the government here says that it isn't. Of course, that implicates other types of data that we store in the cloud. And we're also saying that this is a general warrant. It's a digital dragnet. You know, the government shouldn't be able to search everybody all at once. They should have to identify particular accounts they want to search, develop probable cause, just like normal. So, you know, there's a lot at stake here. There's a number of different issues, but one of the big ones is, you know, can the government just sort of trawl through all of your data that you have stored on the cloud? If they can do it with location history data, what about email? Can they search everybody who emailed about a certain phrase? So those are the, the potential privacy stakes here.

[A]

So before we dive in a bit more to sort of the history and particulars of this case, I do want to ask a little more about geofence warrants, you know, how many people can they end up sweeping up in this sort of reverse search process?

[C]

So at the beginning of the process, it searches everybody. Everybody who has location history enabled, which Google has told us is about 592 million people, about a third of all Google users. And that runs against everybody. It doesn't matter whether you were there or not. Google has no way of determining that ahead of time. And they have to go in and take a peek at everybody's account just to check. So at the very first step, everybody is implicated. At the second step, that number drops. And it's approximately about a third of the cell phones that were in the area at the time. And that number can range from the dozens to the hundreds, depending on the area and the length of time. Here in the Chatri case, it was 19 people who had their information, you know, returned to the government after that initial sweep. And then from there, the government actually asked for information on all 19 of them. And Google had to kind of shout them down and say, no, be more reasonable. And so they came back and they said, how about these nine? And. And then Google said, okay, and they got more information about those nine. And then they decided there were three more that they were really interested in. And so those were their finalists. Obviously only one of them was involved in this case.

[A]

And so in this case, it involved a. A bank robbery. Were all those people being scooped up by this geofence war and people like in the bank or, or, you know, at that specific building where this crime happened?

[C]

Yeah, that's. The general idea is that it's trying to identify literally everybody in the area at the time. I mean, it's limited by who has location history enabled, but the, the basic idea is to get information on everybody who was in the vicinity of that crime, whether they were involved or not.

[A]

But I'm certainly like, in. In this case, sort of vicinity ended up being a little broader. Right. I mean, we weren't talking about just one building.

[C]

Right. So in this case, this case involved a bank robbery. But the geofence here didn't just cover the bank. It covered the entirety of the journey. Christian Church next door, along with its entire parking lot. And the data returned as a result of this stretched much further, even outside of the range where the government said that it was going to reach. And we're talking about people in hotels, hospitals, homes all over the place in sensitive locations that had absolutely nothing to do with the robbery and couldn't have.

[A]

I was really struck by the amicus brief that Google submitted for this case where they outlined some other geofence warrants they've received that kind of, you know, along the lines of this case, but sometimes even more severely, didn't just go to the spot where a crime occurred or the, the building, but you know, entire neighborhoods, entire sections of towns. It seems like the, you know, kind of the parameters of how these geofence warrants, how much they can sweep in broad sets of people in the location data is really potentially daunting.

[C]

That's absolutely true. This is a relatively early geofence warrant in the scheme of things. And after we had some initial wins, the government started changing tactics a little bit, narrowing the time or the area covered, but also often adding additional locations, trying to cross reference numbers that might appear in one location or two locations or three locations and actually asking Google to do that work for, for them, kind of putting them in the position of a deputy.

[A]

So as far as the work that Google does in these cases, in this case, Chatri, the geofence warrants sent to Google. Google's the main known recipient of geofence warrants, but in the last couple years they've actually changed their data retention policies so that they no longer have the location data stored in the company that's responsive to them. All that, all that information is now just on users own devices. So you know, in light of this, why is this case still important? You know, some folks might ask, well, you know, if Google's the one who receives all these geofence warrants and they now say that they can't respond to them, doesn't that kind of moot the issue or mean that this is, is no longer relevant?

[C]

So I should start by saying that what Google did was really significant, I think both practically and legally practically because it, it really does make future geofence warrants impossible, at least with Google. And, and I, you know, if we haven't explained it in a. Google changed its policy to say, you know what, we're not going to store all this location history data, which is user data on our central servers anymore. We are going to from now on store it on people's phones directly if they choose to keep it and we're not going to have a copy of it anymore. And so it's therefore impossible for Google to respond to a geofence warrant anymore. Google has, has changed the way that they store copies of this data such that if the government wanted to search everybody's location history data now, they would have to go and get a warrant for everybody's cell phone with location history data on it. You know, that is significant, obviously from a practical perspective, but legally, because we're having this fight over whether location history data is private, whether it's somebody's digital property. And of course the 4th Circuit here said that there is no privacy interest in location history data because you, you know, have it stored with this third party company and you know, to which Google replied, here, hold my beer. Days later, after the fourth Circuit argument where the court seemed to indicate where they were going, Google demonstrated this by deed transferring location history data or announcing that it was going to transfer location history data from its servers to people's phones directly. So it's saying it's showing this is user data, it's private data, it's not our data, it's not a business record. And, and so I think that is significant. But we're still having these fights, right? There is a time lag. Criminal cases are still pending. Mr. Chattery's case is still pending. And that was one of the first ones. And I think the underlying questions here are not going away because of Google's policy change.

[A]

I think we, we can all definitely hope that more companies take a hold my beer and protect user privacy approach across issues. Do you think there's, there's other companies and services that would also be getting geofence warrants in the future potentially that might not be taking up that sort of same proactive policy Google did so in the past.

[C]

I mean, we know that companies like Uber and Lyft and Snapchat have all received geofence warrants. So has Apple. But those companies have either not been able to provide, I guess granular or comprehensive enough location data or they just, in Apple's case, for example, don't keep it. That does not mean that we are not seeing these types of warrants still after Google's policy change in particular, we saw a huge uptick in something I call Franken warrants or what the government calls area dumps or area searches, which are more or less the same sort of thing issued to a cell phone service provider. So AT&T or R T Mobile for some reason not Verizon yet, but you know this, it's using a different type of cell phone data than your sort of regular cell phone records. Something called Timing advance, which is maybe another podcast, but that's not optional, right? And this is not opt in or opt out thing. Everybody that has a cell phone is transmitting this data and the government is using it in a geofence like way. So I Don't think we're done with this issue just because Google changed its policy, but it is a welcome change.

[A]

So Mike, you mentioned also that the, the Fourth Circuit, the court below that considered this before the Supreme Court, that some of the justices there said there wasn't even a privacy right in location data. But you know, the supreme court back in 2018, they issued a rule in another case, Carpenter, that specifically took on location tracking for cell phones and said that there was a, a fourth Amendment right there and that you needed a warrant for continuous tracking of people's cell phones. So what sort of was the reasons why the lower court distinguished that? And what would be the ramifications if the Supreme Court said that location tracking in a geofence warrant for one of those reasons wasn't Fourth Amendment protected?

[C]

Right. So the Fourth Circuit in this case wasn't actually able to reach a determination one way or the other on really any of the issues in this case. They issued a one sentence per curiam decision affirming the district courts judgment and that was it. Aside from another 120 pages of nine concurrences and dissents. And, and there weren't eight votes there for any of the major issues in this case, including whether location history data is private. And I think, you know, that is one of the most critical issues in this case because without that finding, as the government argues, no warrant at all is needed to search this data.

[A]

So it wouldn't even be a geofence warrant in that case. It would just be a, you know, a geofence demand that, that gets handed over without court approval or with some very low standard, maybe even.

[C]

Right. I, I think, you know, the government might have even, you know, said at some point that the reason they're seeking a warrant at all is just because, well, Google asked them to and wasn't going to comply otherwise. And you know, that may speak to another set of power dynamics, but Google was saying we're, we're just not going to comply unless you get a warrant. And, and so the government did, but in court they're saying actually we never needed to get one because this data they believe isn't private at all and should just be available to them. And of course the, the problem there is that we're not, we're talking about location history data here, but Google doesn't treat that any differently than other types of user data. You know, it stores it in the same way in your account, in your password protected account, in your, your virtual digital locker, in the same way that it stores your emails and your photographs and your documents and your, your other messages. And so if there's no privacy in location history just because it's on a third party servers, then what about all of this other data? And I think, you know, that those implications have been echoing throughout this case and certainly did at argument.

[A]

So, yeah, I mean, this kind of brings up that the third party issue and, and something called the third party doctrine. Could you explain a little about what that is and how that kind of plays into this question of whether this data is private or not?

[C]

Right. So in the 1970s, the Supreme Court issued a pair of decisions about bank records and telephone numbers dialed, saying that because that information was voluntarily shared with a third party, I.e. the bank or the phone company, that you didn't have a privacy interest in it, and the government didn't need a warrant to go and search it. And that became known as something called the third party doctrine. And which basically holds, although the court has never really extended it, that information that you share knowingly, involuntarily with a third party loses its Fourth Amendment privacy interests. And, you know, obviously that doctrine, taken to its logical conclusion today with the amount of information that we all store digitally on the cloud, has tremendous implications. And, and so, you know, that is one of the central issues in this case. Is this data private? You know, let's say it's, it's a journal, just a written journal of where you went and you write this down. Is the fact that you are storing it in a virtual private locker with Google, does that take away your privacy interest in it? Obviously, we are arguing no. We're also making an important other argument here about who owns that data and saying that, well, you know, we believe, and Google believes, and pretty much everybody else believes that that kind of data that you, you create yourself and you store with with Google or a company like them is your data. And Google says that too, in their terms of service and their privacy policy. And in the briefs that they filed in this case, they say, this is not a business record. This is not our bookkeeping. This is your data that we're holding on to you, holding onto for you. And in that sense, even a little intrusion, no matter whether we're talking about a day or two or seven or a couple of months of location history data, any intrusion is a Fourth Amendment violation because that is your data, and the government can't search it without a warrant.

[A]

I mean, the, the justices, it seemed, did seem to understand the magnitude of this problem. They, they mentioned a lot of different digital records and cloud stored items that have become really common in life. You know, email, online calendars, online photos that you store, online documents. Seems pretty clear at this point. It's just that sort of third party doctrine is just not really compatible with a digital world. I mean, do you, do you think we're headed in the direction, away from that and maybe towards some sort of new standard like along the lines of what you're saying of is the company using this as a business record versus is it acting sort of as a steward and just holding something that's really your record, Would that be a better way to do this?

[C]

So we're not actually asking the court to overrule the third party doctrine, but I think it is important to recognize that the court has never actually applied it outside of the 1970s and certainly hasn't applied it to digital records. And so, you know, just as the court declined to apply it in Carpenter to cell site location data, we think that this is similarly private enough to fall outside of that exception. And of course that it is user data and any trespass on that should also trigger a warrant requirement. So that's where we are.

[A]

So I want to dive into the some of the arguments and discussion that we had from the court last month, but just one kind of question about sort of the narrative of the case. First, you mentioned that this is part of a class of reverse warrants and Franken warrants. So what other sort of other similar surveillance technologies and techniques exist in that broader category beyond geofence warrants? You know, what are they and how do they tie into this case? Even if they're not geofence warrants themselves,

[C]

there are lots of other types of location based searches that exist out there. Geofence warrants are just one type. We mentioned area dumps a second ago. Tower dumps are another. They didn't come up with an argument, but, you know, that was fine by us. And I think there are some important similarities and differences between the different types of location tracking technologies. And I imagine we're going to continue to see litigation on that front, regardless of how the court rules in Chatri, you know, geofence warrants in, in this context have some really particular attributes and, and whether the court focuses on those or on the issues more broadly, I think will determine the impact on other types of surveillance technologies. But, you know, technology is advancing very, very rapidly, more rapidly than the courts are able to keep up with the law. So, you know, any decision that the courts make here is unlikely to capture the full extent of what we're likely to see next. So I think some guidance is definitely necessary, but I don't know that we're going to see a ruling that solves or answers all of the questions out there.

[A]

The justices mentioned a couple of times cell tower dumps as sort of another type of reverse warrant in another location tracking technology, but not much else. In terms of these other reverse warrants, did that surprise you or did that seem to kind of fit with how the case is being analyzed?

[C]

You know, like I said, I think geofence warrants have, have some similarities and, and some differences with tower domes, but those are significant. And, and I understand why the court wouldn't want to tackle both at the same time.

[A]

In, in general, did the arguments go the way you expected, or were there things that surprised you about the way that the oral arguments played out?

[C]

I. I don't know that oral argument ever goes the way you expect, but I guess, at least in my opinion, there weren't any big surprises in the questions. Remember, this is an issue that split circuits and state supreme courts. The fourth Circuit couldn't come to an agreement on any of the issues. So we had some tough questions and some helpful ones, but nothing that we weren't prepared for.

[A]

So when you're preparing for arguments like this and putting together the briefs and sort of planning out what are going to be the main points at oral arguments and how you're going to respond to different questions, how much are you in the team you worked with shaping your arguments around specific justices versus just trying to sort of lay out what you think is the right case overall and sort of convince them as a group.

[C]

That's interesting. It, you know, you have to remember that a lot of the cake was baked. We started this case in, in 2019. So the Fourth Amendment center, along with the federal defenders in the Eastern District of Virginia, have been representing Mr. Chaudhry since the initial motion to suppress, you know, back in 2019. And that was just a year after the Carpenter decision and a year after Justice Gorsuch filed his dissent in that case, which I, you know, sometimes characterize as a concurrence because his gripe wasn't that the outcome was wrong, but that the lawyers below didn't argue that he had a property interest in his cell phone location data, only a private, only a privacy interest. And one of the things that we were very careful to do here was to make that record in the trial court establishing that Mr. Chaudhry had a property right in his data. And you Know, we subpoenaed Google. We had them on the stand, they filed briefs in the case and, and said the same thing, that, that it is user data. It doesn't, it's not a business record. It doesn't belong to Google. And so, you know, we made our best attempt at a good record, thinking that this might be one of the cases that, that reaches him.

[A]

So since that, that Carpenter case back in 2018, which was the last big Fourth Amendment case, and issue of sort of surveillance and technology, an entire third of the court has turned over. We have three new justices, Justice Kavanaugh, Justice Barrett and Justice Jackson, who. This is really the first time that we've seen them take on a, a Fourth Amendment and technology case. How do you plan arguments directed to those justices who you haven't seen talk about this issue or haven't written as a Supreme Court justice on, on this, on these types of issues before? And what did you think of the way they were reacting and the questions they were asking in, in arguments?

[C]

I, I think one of the most important things to do in the Supreme Court or in district court is to have the judges realize that this is a privacy issue that could affect them, too. And we kind of saw this in the Jones case back in 2012, when Chief Justice Roberts asked the Solicitor General, you know, are you saying you could put a GPS tracker on my car in the Supreme Court parking lot right now? And the government kind of sheepishly answered, yeah. And I think that was the moment they lost that case. It happened in the district court in this case, too. I remember after we had Google on the stand after testimony in district court and we took a recess, the court clerk came up to me and said, can you look at my phone and make sure that this stuff is off? And that made me think that what we had done had resonated. And so here I thought it was interesting when Justice Barrett said that she had to go and check the location history settings on her phone. You know, that to me signaled that we had conveyed our message.

[A]

Yeah, that's really interesting, kind of, because it's a common sort of concern both for courts when you're talking to judges and also with lawmakers of how much do they understand new technology. Like you said, it did seem like a lot of this was resonating of this isn't some sort of complex, convoluted new tech. This is sort of the, the ins and outs of daily life, these, these types of tools. It does kind of feel like that sort of, that is resonating and it's interesting to hear kind of, yeah. That the thought of, like, keeping the stakes personal is important, even at some level here, like, where the stakes are so high. So two of the justices, Justice Alito and Thomas, seemed like they were not really eager to even have this case in front of them. They said that basically you guys were asking for an advisory opinion because changes in the Google policy that we talked about and also something called the. The good faith doctrine rendered this case moot. So could you talk a little bit about what the good faith doctor is and why you think it should and presuming you guys don't think it should block off a ruling here?

[C]

Right. Yeah. This came up at the very beginning of the argument. Justice Alito, I agree, did not seem pleased that the Court was hearing this case. But as we argued, Google's policy change happened back in 2023. The court was well aware of it before granting, sir. And it certainly doesn't change the facts of, of Mr. Chatri's case or anyone else caught up in other geofences. The Court also specifically declined to grant cert on the good faith question and the good faith doctrine. Just briefly, it's the freebie rule for police. It pretty much says that law enforcement should get a pass on the first unconstitutional warrant if they didn't know it was unconstitutional at the time. And I guess importantly, it allows courts to avoid reaching difficult fourth Amendment questions and developing the law. But that may be a different podcast here. The district court and the Fourth Circuit ultimately determined this case on the good faith document and said that even if this warrant was unconstitutional, or even though this warrant was unconstitutional, constitutional, we're not going to suppress the data in this case because of the good faith doctrine. And the Court declined to hear argument on that particular issue. I, I think it is not moot if we, certainly, if we had a win here, Mr. Chaudhry would be raising this issue on remand and the Court would have to make a determination about whether it applies or not under these circumstances and given the Supreme Court's ruling. So, you know, we of course, did disagree and do disagree that it is moot and hope that the Court does provide some guidance on these issues.

[A]

It does seem like kind of this notion of, well, we, we don't need to actually say what the rule should be here because this, this freebie exception is probably going to apply, would create kind of a, a very dangerous catch 22, because police are always going to be acting in good faith, are not going to, and they're not going to know what the, the law is on these novel tech questions until the courts step in and say, when a surveillance technology is so powerful and what exactly the rules are for. Right. I mean, I don't see if kind of that's how we, how the law was applied, how we ever sort of get out of that cycle.

[C]

Exactly. By pulling a good faith ripcord, judges can avoid making rules, but those, you know, rules would guide law enforcement for the next time, and they don't have that guidance. So the process repeats. And because technology advances more quickly than the law, any ruling now, say, even on geofence warrants, may not be directly applicable to the next thing, say Franken warrants. And so we end up with good faith again, and we end up without any development in the law, even as technology is changing as rapidly as it

[A]

is in general, this does seem to kind of be a perpetual problem with the law not keeping up with tech. I mean, you mentioned this case expands all the way back to 2019, the Carpenter case that talked about long term cell phone tracking. That was 2018. That took years to go through. And that was a tracking technique that was already underway when the Jones ruling on GPS trackers you mentioned was decided in 2012. I mean, do you see this as sort of a serious problem we need to fix, or is this sort of the system slowly working its way out, but on delay? Because it seems like we're, we're always a bit behind the ball.

[C]

I think the good faith doctrine is one of the main reasons we're always behind the ball, because it provides this easy out to avoid deciding the substantive questions, which can be difficult. Right. And it involves new types of technology every time around and maybe a novel application of those to existing law. And without additional guidance from the court, without timely guidance from, from courts, I, I find it difficult to, you know, see how we get to a modern fourth Amendment.

[A]

So do you think sort of a revised view on the good faith doctrine is the solution on that to make things work a little more quickly, or are there other sort of.

[C]

Absolutely. NACDL has filed amicus briefs on that point, in particular, warning about the application of the good faith doctrine and the way that it stifles development of fourth Amendment law and privacy rights.

[A]

Justice Alito was one of the main justices raising this, you know, this point about the good faith doctrine and seemed less interested in the merits of this case. You know, he's been a bit enigmatic on privacy issues because back in 2012, in that Jones case on GPS trackers, he issued a Concurrence. That was a really strong opinion supporting privacy rights and broad protection of privacy rights, and that seemed to shape a lot of the Court's future rulings on this. But by the time we get to 2018 in Carpenter, he actually dissented in that case and took a very narrow view on location tracking. And now here, you know, several years later, he seems like he doesn't want to be talking about the merits one way or the other. Yeah, I'm kind of curious both for that shift and in general. Do you think Justice's views on issues that don't really fall into a neat sort of liberal conservative doctrine divide, like privacy issues and also issues where there's these types of new tech and new tools that keep changing so much so rapidly. Do you think that makes things more prone to sort of ideological shifts between Justices than they would normally have, or do you think this was just kind of a. A standard thing that could happen?

[C]

I can't say what Justice Alito is going to do here.

[A]

In general, do you think that sort of new technologies like this make things more prone to. To there being sort of less consistency for how judges and Justices will rule over and over?

[C]

Well, I think it is really important to recognize that the landmark digital privacy cases that we've had over the last 20 years, Jones, Riley Carpenter, haven't split along traditional ideological lines. In fact, they didn't split at all. Some of them. Jones was 9 0, although they disagreed about why. Same with Riley. Carpenter had some dissents, but as we talked about, Gorsuch's was kind of in name only. He wanted that property argument to be raised. And I think, you know, more generally, these issues aren't political in the same way that maybe some of the other courts cases are. And we have seen Justices who disagree on most things who come together over privacy issues. You know, I think any time you get people to recognize that this can affect them, those political concerns become secondary and the political winds may change direction. But nobody wants a government that can invade their privacy without strong checks.

[A]

So we don't know how this ruling's going to go, and we'll see when the opinion comes out some point this spring or summer. But what do you see as sort of the next big issues on the horizon? What are going to be the most important and urgent 4th amendment in tech issues that courts are going to be focusing on in the near future?

[C]

I think that regardless of how the court rules here, there is going to be lots of analysis and litigation over what it means, and not just for geofence warrants, but for other similar types of searches. But if things go sideways, from my perspective, I think it's important to remember that things like ECBA, like the Electronic Communications Protection act from 1986, right, the Right to Financial Privacy Act, RFRA, were constitutional responses or congressional responses to the Supreme Court's constitutional decisions in those third party doctrine cases. So they, you know, recognized that those were bad decisions from a privacy perspective and passed laws to establish their privacy and regulations for, for government access to them. But I would say lawmakers do not need to wait. It has been 40 years since ECBA in 1986. That was I think like four years before the World Wide Web existed. Our privacy laws are in desperate need of an update and I know that there is bipartisan support for it in Congress and has been for years. Also along those lines is the Fourth Amendment is not for Sale Act. I think that is incredibly important even if we get a good win in Chatra, because what the government can do right now through data brokers and, you know, buying this information from private companies is the same kind of thing just for a fee from a portal at police headquarters. So I think legislation is desperately needed here and it shouldn't be that we have to go to the Supreme Court to get a case every 10 years.

[A]

Hopefully it won't be another 10 years before the next case because as you're describing, there's a lot of really important and really fascinating issues. We'll be keeping our eye on those and we'll be keeping our eye and see how the court rules on the Chowtry case. Mike, thanks so much for taking the time to chat with us about it and thanks for all your work.

[C]

Thanks Jake.

[B]

That's it for this episode. I hope you'll send your feedback. You can write to me at Justin TechPolicy Press. Thanks to Jake La Perouse, thanks to my co founder Brian Jones and and thank you for listening.

[C]

Tech policy press.