In a split opinion, the Fourth Circuit ruled in United States v. Chatrie that the government did not conduct a Fourth Amendment search when it obtained two hours’ worth of Google Location History data pursuant to a geofence request (or “reverse location search”) authorized by a warrant. Applying the third-party doctrine, the Court found defendant Okello Chatrie lacked a reasonable expectation of privacy in the data because two hours’ worth of location data implicated only limited privacy concerns and the information was voluntarily shared with Google. In finding no search requiring a warrant took place, the Court skirted having to address the district court’s ruling that the underlying geofence warrant was deficient under the Fourth Amendment.
In 2022, to identify a suspect in a bank robbery, the government obtained a geofence warrant directing Google to comb through its Location History data to determine which devices, and consequently which associated individuals, entered a 300-meter in diameter circle capturing the bank and surrounding areas over a two-hour window. The resulting data led to Chatrie’s arrest and prosecution in connection with the robbery. As we’ve previously covered, the U.S. District Court for the Eastern District of Virginia found the warrant violated the Fourth Amendment because it lacked particularized probable cause to search all nineteen Google users within the geofence but nevertheless denied suppression based on the government’s good faith reliance on the warrant.
Rather than assessing whether the underlying warrant comported with the Fourth Amendment like the district court, the Fourth Circuit focused on the more foundational question of whether the geofence request constituted a Fourth Amendment search requiring a warrant – ultimately concluding no search occurred. The majority grounded its decision in the third-party doctrine, which the Court contended “squarely governed” in cases like Chatrie where the information sought implicated limited privacy concerns and the information was voluntarily shared with third parties.
In determining the government’s access to two hours of Location History implicated only limited privacy concerns, the Court likened the two hours of Location History to the short-term surveillance of public movements and highlighted it concerned only a “single, brief trip” from which the government could not, alone, deduce intimate details about Chatrie’s life, distinguishing it from the more comprehensive and revealing seven days’ worth of CSLI in Carpenter and the weeks of aerial photographs in the Fourth Circuit’s Beautiful Struggle case.
The Court also found that Chatrie voluntarily and knowingly shared his Location History data with Google when he affirmatively turned on the Location History setting on his device. The Court emphasized that Location History is “off” by default, turning on Location History was not necessary to use his phone or applications, and before activating the setting, Chatrie received ample notice that Google would store his location data. The Court also noted that he had the right to view, delete, or change this data and to stop Google from collecting it at any time. The Fourth Circuit distinguished Chatrie’s affirmative decision to turn on the non-essential Location History setting from the sharing of CSLI in Carpenter, which the Supreme Court deemed to be involuntarily because it is an automatic and integral function of phones that cannot be stopped without turning off the phone or choosing not to have one – both unreasonable options, in the Court’s view, because phones are “a pervasive and insistent part of daily life.”
Chatrie’s counsel have indicated they will petition for hearing or rehearing en banc in light of Judge Wynn’s nearly seventy-page dissent, which would have found that Chatrie did have an expectation of privacy in his Location History and that the government’s search violated the Fourth Amendment and should not have been excused under the good-faith exception.
Key Takeaways
Notwithstanding that the case may be reheard, key takeaways of the current Fourth Circuit opinion are:
The ruling is not a sweeping pronouncement that individuals lack a reasonable expectation of privacy in all location data or that all geofence requests are not searches.
- Although the Fourth Circuit does not expressly limit its ruling to the facts before it, the facts here mattered – specifically, the narrow two-hour window capturing limited data offering only a narrow glimpse into the defendant’s life and Chatrie affirmatively enabled Location History subject to adequate notice and could disable it at any time. A court could reach a different outcome in a case involving a broader time period or a different type of location data, among other potential variables.
There may be narrow circumstances where the government attempts to use court orders or even subpoenas to compel providers to conduct reverse location searches.
- The Court’s finding that no search occurred and thus no warrant was required suggests that there may be circumstances like those in Chatrie where the government may compel providers to conduct geofence requests pursuant to lower levels of process, such as court orders for ECPA-covered providers and subpoenas for non-ECPA covered entities. Therefore, providers may see an uptick in geofence orders and subpoenas from forward-leaning investigators and prosecutors, particularly where the government does not believe it can show probable cause to obtain a warrant.
Providers may change their products to limit their ability to process geofence requests.
- After the Fourth Circuit held oral arguments, Google announced it would be changing the Location History setting, including by switching to storing Location History on users’ devices (as opposed to on Google’s servers) and encrypting this data when backed up to Google’s servers, curtailing Google’s ability to query using this type of location data. Apple has long employed similar approaches to location data, which has limited Apple’s ability to process geofence requests and resulted in Apple receiving very few geofence requests.
