Orin S. Kerr | 12.9.2023 4:25 AM

In March 2022, I had a long post on the district court's ruling in United States v. Chatrie, the first federal district court ruling on geofence warrants and the Fourth Amendment. Today the Fourth Circuit held oral argument in the case, which you can listen to here starting at about 1:10:

I posted my oral argument impressions on X, and I thought I would summarize my thoughts here, too.

It was a somewhat unusual argument, in that the judges spent a lot of time expressing their views and arguing amongst each other. In general, though, I thought it went well for the government. I would guess they prevail 2-1.

Judge Richardson seemed to be a vote on the government's side, and on the broadest ground. He suggested that there was no Fourth Amendment protection in the specific records known as "Google Location History" because you need to opt in to have Google collect them. Only about 1/3 of Google customers opt in to that. And to Judge Richardson, that was outcome determinative: If Google only keeps these particular records if you opt in, then you have volunteered to have those records and the third party doctrine applies.

I happen to think that's right, as I argue briefly in a forthcoming book (more on the book project later). I realize some are skeptical that........

© Reason.com