Privacy and law enforcement clash as the Supreme Court wrestles with 'geofence' warrants

The U.S. Supreme Court Heather Diehl/Getty Images

Heather Diehl/Getty Images

The U.S. Supreme Court seemed divided Monday on the question of geofencing, a relatively new and powerful tool that allows police to tap into giant tech databases in order to find out who was in the vicinity of a crime scene.

In this case, the crime was an unsolved bank robbery that was ultimately solved by tapping into Google's database to determine the identities of people who were near the bank in the two hours before and after the heist. Although police obtained a warrant, it was for Google's database.

The tech company pushed back hard to limit the number of cellphone owner identities it was willing to turn over, but the Trump administration maintained that because one-third of Google's customers voluntarily signed up for a feature called "location history," they have no right to privacy for that information.

In oral arguments at the Supreme Court Monday, most of the justices aimed pointed questions at both sides, with the usual conservative-liberal alignments scrambled like an egg.

The defendant's view

Lawyer Adam Unikowsky, representing the defendant, got this question from conservative Justice Neil Gorsuch: "If we were to rule that there was a voluntary exposure, here to Google, that allows the government unfettered access, that ruling would pertain equally to email?"

"Essentially, all your data on the cloud," Unikowsky replied, "would be exposed to government searches without a warrant."

Liberal Justice Sonia Sotomayor asked whether that also applied to photos, email and calendars? All of it, Unikowsky said.

"This seems very complicated from the user's point of view," said conservative Justice Amy Coney Barrett. "Frankly, you know, I have no idea how my data is stored. Why not just think about this from the perspective of a reasonable expectation of privacy?"

That prompted Sotomayor to observe that because some people take their phones everywhere, "It'll follow you to a brothel. It'll follow you to a cannabis shop."

Doesn't your phone share data, too, added Barrett? "I feel like I get ads when I'm in particular places," Barrett said. "I mean, I need to check my location services settings plainly."

The government's argument

Representing the Trump administration, Deputy Solicitor General Eric Feigin sought to mollify the geofencing critics, but conservative Chief Justice John Roberts seemed skeptical, asking what's to prevent the government from using this tool to find out the identities of everybody at a particular church, or a particular political organization?

"First of all, I don't think that there's any kind of categorical protection around something like a church," Feigen said.

Really, replied Roberts. "So you don't think there's any constitutional protection from focused surveillance that would cover everybody in a particular location?"

Feigen responded, if "someone doesn't want it known that they're in a particular place, like an abortion clinic, for example, they don't have to enable location history or keep it on."

Liberal Justice Elena Kagan pushed back, asking where the government draws the line. Supposing, she asked, that the police had picked up the robber's cell signal at his home?

When Feigin left that question open, Justice Barrett interjected: "Now you're telling Justice Kagan, really, that if you go into a private home, it wouldn't be a search?"

Feigin agreed that would be a tough argument to make, eventually conceding that photos, calendars, and email could only be obtained by police with a warrant.

In rebuttal, lawyer Unikowsky said he was relieved by that concession, but noted that revolutionary implications are around the corner "when ... AI is monitoring everything we do as opposed to a human being."

Three of the court's conservative justices — Samuel Alito, Clarence Thomas and Brett Kavanaugh — to one degree or another seemed more on the government's side. But truth be told, this is the last week of oral arguments for this term, and with so little time left, the high court likely will try to figure out a narrow decision in the case.