Legal Brief: New SCOTUS Case Hits Close to Home for Integrators

Many years ago, as a Judge Advocate General (JAG) for the U.S. Air Force, I led an investigation into a recruiter who had inappropriate relationships with two female high school recruits – a crime under military law. Using creative investigative techniques, we tracked the suspect to a specific computer lab in a college dormitory where he had no legitimate reason to be. Confronted with the evidence, he confessed and pleaded guilty. Justice was served.

The case was resolved in 2000, when cell phone use wasn't ubiquitous, and communications networks were primitive by today's standards.

We had to work hard to place that suspect in that room. Today, law enforcement wouldn't have to work nearly as hard as we did, and that's exactly what the U.S. Supreme Court is considering.

Surveillance Technology in Focus for SCOTUS 

A geofence warrant is a type of reverse search warrant in which the government seeks to identify who was within a defined physical area during a specific period of time.

Such searches function by surveying vast amounts of location history from communications networks and smartphones or other connected devices. This can include GPS information, Bluetooth beacons, cellphone location information from nearby cell towers, Internet Protocol address information, and/or the signal strength of nearby WiFi networks.

Some refer to geofence warrants as “reverse warrants” because they can be used to identify suspects when none are known. Some allege geofence warrants are unconstitutional because they bypass customary probable cause requirements of the Fourth Amendment and collect data on innocent people present in a particular area, with potential for overreach during protests or in densely populated areas. 

In January, the U.S. Supreme Court agreed to review the constitutionality of geofence warrants. In that case (Chatrie v. United States, Case Number 25-112), a man who was convicted of robbing a Virginia credit union after being apprehended on a geofence warrant asked the Supreme Court to resolve whether such warrants amount to a search under the Fourth Amendment.

The appeal focuses on whether such broad, location-based data dragnets meet the Fourth Amendment's requirement for individualized suspicion and probable cause. While the Supreme Court did agree to hear the case, it stated that its review would be limited only to the first question of the appeal – whether the execution of the geofence warrant violated the Fourth Amendment, not whether the evidence should be suppressed.

This is because the trial court and U.S. Court of Appeals for the Fourth Circuit determined that a “good faith” exception applied to the search. If law enforcement conducts an unconstitutional search on the good-faith belief that the search is not unconstitutional, a court can permit the evidence to be used at trial despite the violation. That is what happened in the Chatrie case – and it appears that the Supreme Court will not disturb that finding.

Meanwhile, the Fifth Circuit Court of Appeals took a different view in a different case. Specifically, they found that making Google dig through 500 million user accounts to find which ones were near the site of the crime at the right time does constitute a search, and that geofence warrants are unconstitutional general warrants.

Given the split between the Fourth and Fifth Circuits, the U.S. Supreme Court agreed to consider and resolve the issues. The arguments before the Supreme Court will focus on the question of whether people have a reasonable expectation of privacy in the location history data collected by Google and other app providers. Historically, a person does not have a reasonable expectation of privacy in information voluntarily conveyed to a third party. The government can thus obtain that information directly from the third party without running afoul of the Fourth Amendment.

But evolving technologies often cause courts to evolve. For example, in 2018, the Supreme Court ruled that information maintained by mobile network providers regarding which cell towers their subscribers’ phones were connected to does not fall under the third-party doctrine. If the government wants cell site information, it needs a warrant. While this may inhibit law enforcement, it also protects individual rights – a hallmark of our system.

Industry Implications

Regardless of what happens in the Chatrie case, the complex issue of what constitutes a search under the Fourth Amendment and what violates our fundamental right to privacy will continue to vex courts across our country.

For security integrators and manufacturers, this case is worth watching closely. The systems you create, install, and monitor – access control, video surveillance, mobile credentialing, and more – generate precisely the kind of location-rich data at the center of this debate.

A broad ruling could expose that data to law enforcement requests that bypass traditional probable cause requirements, creating legal and reputational risk for you and your customers. Understanding what data these systems collect, how long it is retained, and under what circumstances it can be compelled may very well become both legal and business questions that must be answered.