Fifth Circuit Flips The Script, Declares Geofence Warrants Unconstitutional

Oh, Fifth Circuit, you crazy, crazy kid. I take back almost all the bad things I've said about you.

The cop-friendliest circuit in the nation has done the unimaginable: set up a circuit-on-circuit showdown that can only be resolved by a Supreme Court decision. Until that happens (don't hold your breath), you and your Google location data are safer in the Fifth Circuit (Texas, Louisiana, Mississippi) than the Fourth Circuit (Virginia, Virginia's AAA-affiliate, both Carolinas, and Washington DC's largest suburb, Maryland).

We won't know whether the timing of this decision is impeccable or fortuitous or whatever until further case law is developed. But we can say this: it was nipping at the heels. The Fourth Circuit released its decision on geofence warrants roughly a month ago. That decision went entirely the other way. While there were a few concerns expressed about a single warrant being capable of forcing Google to search its entire collection of location data (something that affects more than a half-billion people), the Fourth Circuit said the Fourth Amendment mattered less than the Third Party Doctrine.

The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.

The Fourth Circuit's decision basically says the government doesn't even need a warrant to collect this data from Google. If people opt in to Google's location data collection, it's on them. And if the sharing is voluntary," the government can have it for as little as a subpoena, no matter how broad the original search performed on its behalf by Google.

The Fifth Circuit goes completely in the other direction, which will definitely come as a surprise to law enforcement. After all, this is the circuit that sides with the government more often than not when it comes to constitutional violations performed by law enforcement officers.

This decision [PDF] is astounding for that reason alone. But it's an important one - a decision that says using a single warrant to force a third party to dig through data contributed by hundreds of millions of people makes a mockery of the Fourth Amendment and its prohibition of general warrants."

This case - like the one handled by the Fourth Circuit - involves a robbery. In this case, it was a Mississippi postal worker being robbed and assaulted in February 2018. Most of the investigation involved the investigative wing of the USPS. Postal inspectors failed to generate any leads for the next nine months. At that point, they decided Google should perform the investigative work for them.

After consulting with other law enforcement agencies which had already issued geofence warrants, the USPS wrote one of its own. Its warrant stated there was probable cause to believe Google housed the data it was seeking. A geofence was drawn around the scene of the crime - one that covered 98,192 square meters.

However, Google's first search was even broader than the specifications delivered to it by postal inspectors. It covered an area of 378,278 square meters during the date and time noted in the warrant (a one-hour period on the day of the robbery) and required Google to search all of its 592 million Sensorvault accounts.

The first search resulted in three identifiers matching the time/date/location restrictions. Without writing a new warrant based on the search results, the investigators went back to Google and demanded further identifying info for the three numbers Google had given them. This set gave the inspectors the device IDs. Again without crafting a new warrant, the investigators told Google to cough up any account information linked to the devices. Using this information, the USPS now had two suspects to pursue. Three suspects, with the lead defendant being the person listed on the caption header of the decision (Jamarr Smith), were arrested, tried, and convicted.

Citing the Supreme Court's Carpenter decision - one that erected a warrant requirement for cell site location info collected from cell service providers - the Fifth Circuit says the other observations made by the nation's top court in that case apply here: it's an oversimplification to assume any data-sharing with service providers is voluntary." Since it's not always obvious what's being collected by who (see also: third-party data brokers and the government agencies that love them), it's insulting to the Fourth Amendment to assume the Third Party Doctrine applies. And it says this while quoting the district court which ruled in favor of the criminal suspect before the Fourth Circuit reversed the evidence suppression order.

[T]he fact that approximately 592 million people have opted in" to comprehensive tracking of their locations itself calls into question the voluntary" nature of this process. In short, a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting YES, I'M IN' at midnight while setting up Google Assistant, even if some text offered warning along the way." Chatrie (Dist.), 590 F. Supp. 3d at 936

But there's something even more concerning about geofence warrants, even when warrants are used: the breadth of the search. That's where this court parts ways with not only the Fourth Circuit, but most jurisprudence surrounding geofence warrants. Not only is the search extremely broad, but at the point the search is performed, law enforcement officers don't even know who they're looking for. (Emphasis 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.

That, my Fifth Circuit-residing friends, is what we call a general warrant." And we kicked those to the curb shortly after we kicked out our former British overlords. We shouldn't be returning to this pattern and practice just because technology and opportunity have fortuitously aligned to give law enforcement a new way to identify suspects without ever having to leave their desks. (Emphasis in the original.)

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.

Warrants are always supposed to be narrowly tailored to minimize intrusion and collateral damage to constitutional rights. A warrant that ignores that isn't any more constitutional just because it's a warrant.

This won't do much for the three convicted men. The good faith exception applies. But this isn't one of those cases where a court says a lot of good things about rights but decides the underlying constitutional questions are best saved for another day. Precedent is established here, which means that going forward, most, if not all, geofence warrants are worthless in the states the Fifth Circuit oversees.

We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.

This is a huge decision. And, of course, plenty of people already have opinions of their own. We'll start with Orin Kerr, who disagrees with the court's view that warrants are unconstitutional when the target of the warrant is just too big to search." (Emphasis in the original.)

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 recordsat all, in other words, even with a warrant based on probable cause.

Right. That's the holding. It may not survive a Supreme Court challenge. Hell, it may not even survive an en banc review, which is one of those things the Fifth Circuit tends to engage in every time it accidentally upholds constitutional rights. This ruling may prove to be extremely short-lived. And yet, Kerr's main concern appears to be the presumed negative impact it will have on bulk surveillance collections and other extremely broad searches enabled by advances in technology.

I'll end with a prediction. In a few days there will be a news story about some national security surveillance program that either stopped, or paused, or at least was the subject of a lot of emergency meetings. You won't be able to tell from the news story what the program was, or what was the cause of concern. But the untold explanation will be a roomful of very worried national security lawyers trying to figure out what the heck to make of the Fifth Circuit's ruling inUnited States v. Smith.

Flow my tears, the NSA analyst (who only agreed to speak on background) said. I fail to see the downside! But that's me and my antipathy towards law enforcement's slew of shiny new EASY" buttons.

Here's the first counter-argument, presented by none other than Judge James Ho of the Fifth Circuit in his concurrence:

[I] fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests.

But hamstringing the government is the whole point of our Constitution.

So, there's the first pointed answer that should be stapled to the forehead of the first source" quoted by reporters as being worried about the ripple effects of a postal truck robbery in the deep South.

Then there's this response from ACLU lawyers Jennfier Granick and Brett Kaufman in their response to Orin Kerr's post, which Kerr graciously published at the Volokh Conspiracy (along with his response to their response):

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because ofSmith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation's security, but that is what the anonymous source will suggest.

Don't believe it. National security lawyers excel at exploiting legal loopholes to justify secret programs and insulate them from judicial scrutiny. We find it extraordinarily hard to believe that they will read the Fifth Circuit's opinion in an unnecessarily overbroad and self-defeating fashion to require the executive branch to shut down one of its ongoing national security surveillance programs. Instead, as they usually do, the lawyers will find a way to justify the program to themselves, even if only by saying that the Fourth Amendment applies differently to foreign intelligence surveillance than to criminal investigations.

The government will be fine. The NatSec apparatus will function as well as ever. If there's bulk surveillance targeting Americans (like the residents of Texas, Mississippi, and Louisiana), that definitely shouldn't be happening in the first place and this will only make what's probably an illegal program more illegal.

If cops can't figure out a better way to find suspects than Googling for them, that's on them. They all like to talk big about their training and experience. Now, they'll just have to start putting all that training and expertise to actual work, rather than just expecting everyone else to do it for them. On top of that, Google has already shifted location data storage back to phone owner's devices, meaning it's got a whole lot less data to search for when it gets hit with these questionable warrants. This decision won't add much hampering" of law enforcement to the status quo.

My prediction? This will change nothing. The government will swiftly appeal this decision and petition the court for an en banc review while waiting to see if this is the sort of thing the Supreme Court might actually want to tangle with. In the meantime, every geofence warrant issued prior to this decision in this circuit is still valid. And they're still valid in the other 47 states, so I wouldn't be surprised to see law enforcement agencies roping in out-of-state agencies to write some geofence warrants on their behalf while they work overtime trying to establish some sort of multi-state nexus.

To be this alarmed already is idiotic. And, in my personal view, this isn't even cause for alarm. This is the court system doing what it's supposed to do: stand up for the people when the government crosses the line.