A noteworthy decision, even if there's no majority opinion.

Orin S. Kerr | 12.16.2025 4:22 PM

The Pennsylvania Supreme Court handed down its long-awaited ruling in Commonwealth v. Kurtz today, on whether there are Fourth Amendment rights in Google search terms.  Among the seven Justices, three took on that question and said no, the Fourth Amendment and the state constitution do not apply.  (One Justice said that she would say no if she had to reach it, but she didn't have to reach it, so she would not take a position.)

In the case, the police were trying to find out who committed a sexual assault of a person known in the opinion by her initials, "K.M." Police figured that whoever committed this crime may have googled K.M.'s name or address before committing the crime.  Investigators obtained what is known as a "reverse keyword search warrant," asking for Google to hand over the I.P. address of whoever may have googled the name or address of the victim shortly before the crime.  Google responded that someone at a particular I.P. address had conducted two searches for K.M.'s address a few hours before the attack.  The I.P. address was in use at the home of the defendant, Kurtz.  The police had not suspected Kurtz in the crime, but they started to watch Kurtz closely, obtained a DNA sample, and found a DNA match from the crime.

Kurtz challenged the warrant, arguing that it was not based on probable cause.  The government responded that whether the warrant was valid or not was irrelevant, as there are no Fourth Amendment rights in search terms.  The first issue in Kurtz was whether the traditional third-party doctrine applies, under which you don't have Fourth Amendment rights in information you share with others, or whether search terms are protected by the Fourth Amendment under the  exception to the third party doctrine carved out in Carpenter v. United States(2018) applied instead.

Writing for a total of three of the seven Justices, Justice Wecht agreed with the government that the third-party doctrine applies and that search terms are not covered by the exception to that doctrine carved out by Carpenter:

Resolution of the central question in this case—whether a person has an expectation of privacy in his or her unprotected internet searches—rests upon whether such actions are governed by Carpenter's "narrow" rejection of the third-party doctrine, or fall instead under the traditional third-party doctrine. The Court's deviation from the traditional doctrine in Carpenter in large part was predicated upon the inextricable relationship between the contemporary person and his or her device. Because the Court considered mobile devices to be "indispensable to participation in modern society," the Carpenter Court held that their use in public is an unavoidable part of modern life. As such, the Court held, a person........

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