Orin S. Kerr | 8.16.2024 4:30 AM

I recently posted a long critique of the Fifth Circuit's ruling last week in United States v. Jamarr Smith, and specifically the court's ruling that Google's geolocation database is too big to search with a search warrant. It remains to be seen what might happen with the case. Just today, DOJ filed an unopposed motion asking for 60 days to file a petition for rehearing. Also, the court has withheld issuance of the mandate on the request of at least one judge.

With that pending, I'm delighted to feature a debate of sorts over the merits of the ruling. Jennifer Granick and Brett Max Kaufman, lawyers for the American Civil Liberties Union (ACLU) who are both very active litigating in this area, wrote to me today with an ACLU response defending the Fifth Circuit's ruling and asking if I might publish it here at the Volokh Conspiracy. Jennifer and Brett are both outstanding lawyers, and I'm delighted to host a debate on this question. With their permission, I am posting their response to my post, followed by my reply below that.

Here is their response, published in full:

The Fifth Circuit's Supposedly "Bananas" Ruling that Geofence Searches are Unconstitutional Is Correct

Jennifer S. Granick & Brett Max Kaufman, American Civil Liberties Union

Last week, the federal Fifth Circuit Court of Appeals issued a unanimous opinion that "geofence warrants"—which sweep through hundreds of millions of account holders' location data in the hopes of ensnaring people who are estimated to have been near the scene of a crime—violate the Fourth Amendment. In a blog post on this site, Orin Kerr criticized the court's holding as "bananas." But if this kind of ruling is bananas, we'll happily take more of them by the bunch.

The Fifth Circuit's decision, in a case titled United States v. Smith, is a reasonable response to the Golden Age of Surveillance ushered in by companies' unprecedented capture of previously ephemeral and unknowable facts about us. The Fifth Circuit held that police may not trawl through a database of hundreds of millions of people's sensitive location histories in the hopes that they will be able to find people who were, according to Google's computers, in the vicinity of a crime at some point in the past. The government uses this technique, geofence searching, with increasing frequency. It pulls out of the cloud people whose phones are estimated to have been near the scene of a crime—even if the person was actually somewhere else. It looks not just for suspects, but also witnesses, ensnaring a subset of individuals destined for further law enforcement scrutiny.

The Fifth Circuit held that such an overbroad search is akin to the kinds of "general warrants" that the Fourth Amendment was intended to prohibit. As a result, no warrant can make this novel surveillance technique legal.

Considering the analog equivalents of this kind of dragnet helps explain why: For example, police might know that some bank customers store stolen jewelry in safe deposit boxes. If they have probable cause, police can get a warrant to look in a particular suspect's box. But they cannot get a warrant to look in all the boxes—that would be a grossly overbroad search, impacting the privacy rights of many people as to whom there is no probable cause. (In one recent case, the government actually tried something similar, but the Ninth Circuit rejected the attempt.)

Likewise, police might know that some people sell drugs out of their homes in a certain neighborhood. If they have a target (whether an address or a person), they can get a warrant to search a house. But they may not search all the homes in the neighborhood based only on the knowledge that illegal drugs were sold in the area.

Kerr raises four main objections to the court's reasoning in Smith.

First, Kerr says that Smith is inconsistent with United States v. Karo, a 1980s case in which the Supreme Court held that law enforcement needed to get a warrant to track a radio-tracking beeper, which the government had placed inside a can of chemicals to be picked up by a suspect, into a private area like a home or locker. The government contended that that it needn't get any warrant at all to conduct this kind of surveillance, because the Fourth Amendment's particularity requirement was a poor fit for a situation in which police could never name in advance where the beeper might go. The Supreme Court swatted away that argument by explaining that it was sufficient for particularity purposes to specify the "object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested."

If police can get a warrant for that kind of tracking, Kerr suggests, surely they can get one for geofence searches, too. The Karo Court, he says, rejected an argument that beeper searches could never meet the particularity requirement—and that rejection should apply to geofence searches, too.

But the argument Karo rejected was the government's, and it was aimed at persuading the Court that particularity requirement was such a bad fit that the Fourth Amendment shouldn't regulate its beeper surveillance at all. Rather than permit unsupervised, warrantless beeper surveillance, the Court "articulated a way to draft warrants to allow the surveillance." But that is far cry from the argument the Fifth Circuit was evaluating in Smith—an argument from the defendants that geofence searches are so broadly invasive that they are akin to the long-reviled general searches banned by the Fourth Amendment entirely.

Not even the government, in its opposition brief on appeal, thought Karo was relevant enough to the geofence warrant issue to cite it even once.

Karo's facts are not analogous to geofence searches. While the final destination of a beeper tracker is unknown, police are tracking a particular object in real time. The government has possession of the object and installs a beeper. Only a few people subsequently will take possession of the object and it will only travel to a few places, as the police follow it. The police know what the object is, why it is relevant to the crime under investigation, who is likely to take possession of it, and for what criminal purpose.

But the Google location history database at issue in Smith contains location data from "592 million individual accounts". With geofence searches, all the police know is that a crime took place in the past, and where. Google's location history database is entirely comprised of constitutionally protected intimate location information, enabling comprehensive and retroactive surveillance of hundreds of millions of people. When the government searches the location database, it is searching........

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