The U.S. Supreme Court set the first warrant requirement for Americans’ location data in 2018. Chief Justice John Roberts, writing for the majority in Carpenter v. United States, declared that when the government “tracks the location of a cell phone it achieves near-perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
 
Though the Court’s ruling set a warrant standard for the extraction of historic cell phone data from cell towers, Carpenter failed to become a general precedent for using other means to geolocate Americans – such as tracking people through their phones.
 
On Monday, the U.S. Supreme Court heard oral arguments in a case that has the potential to become the next landmark ruling. If the sharp questions of the Justices are any indication, they may well limit the government’s ability to conduct large geolocation sweeps that can compromise the privacy of large numbers of Americans.
 
The case involves Okello Chatrie, convicted of bank robbery near Richmond, Virginia, after local authorities used a geofence warrant for the area of that crime and picked up Chatrie’s phone at the scene. Hundreds of other people within the area geofenced by police were also pinned, including guests at a Hampton Inn, residents in an apartment house and a retirement home, and diners at a Ruby Tuesday restaurant.
 
What’s the big deal, you ask, if this maneuver helped catch a bank robber?
 
As a lower court judge noted, with such a procedure – this time a warrant issued to Google – everyone within the designated perimeter “has effectively been tailed.” Even when such technology is used for a clear purpose, such as locating a bank robber, the precedent opens the way for the government to track Americans’ associative activities, from protests to political activity to worship. In its questioning, the Supreme Court recognized the Orwellian possibilities of this technology.
 
“What’s to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization,” Chief Justice Roberts asked the government’s lawyer. “What are the restraints that would prevent that from becoming a problem?”
 
Adam G. Unikowsky, Chatrie’s attorney, characterized geofence warrants as fishing expeditions that “search first and develop suspicions later.” Unikowsky told the Justices:
 
“The technology may be novel, but the constitutional problem it presents is not. The potential for abuse is breathtaking: The government need only draw a geofence around a church, a political rally or a gun shop, and it can compel a search of every user’s records to learn who was there.”
 
The Justice Department lawyer had a tough time arguing that Chatrie did not have a reasonable expectation of privacy for location history data that his phone shared with Google. Justices Neil Gorsuch and Sonia Sotomayor asked questions showing a concern that the government’s position could be expanded to include emails, photos, and documents, as well as location data.
 
The Justices also questioned the extent to which Americans are even aware that their cell phones enable tech companies to track their locations in a way that can be shared with the government.
 
These questions echoed the PPSA amicus brief, in which we told the Justices: “Letting a plumber into your house to fix a sink does not mean you have no expectation of privacy when the police come knocking.” 
 
A little levity came to the proceedings when Justice Amy Coney Barrett said she was shocked by how many ads she saw on her phone that were triggered by her visits to specific locations.
 
“I need to check my location settings, plainly,” she said, triggering laughter throughout the courtroom.
 
Judging by the questioning, it appears that this case may, at the very least, lead to some tightening of mass geofencing. PPSA hopes that all the Justices will agree with our brief in which we declared: “The Founders would have been shocked to see privacy brought to this sorry state.” 

​The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
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Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

​The Project for Privacy & Surveillance Accountability has filed an amicus brief in the U.S. Supreme Court case United States v. Chatrie, warning that geofence warrants threaten not only Americans’ Fourth Amendment rights, but also our religious liberty and freedom of association.

PPSA previously urged the Court to hear this case and rein in geofence warrants as modern digital general warrants. These warrants compel technology companies to turn over location data for every device within a defined geographic area. Investigators then sift through the movements of potentially hundreds –sometimes thousands – of people in hopes of identifying a suspect.

Now that the Court has granted review, PPSA explains in its amicus brief that this dragnet surveillance exposes something far more sensitive than physical location. Location data can reveal belief, identity, and association.

“Geofence warrants also threaten core First Amendment freedoms by enabling surreptitious mass intrusions into sensitive spaces like places of worship,” the PPSA brief explains. 

A geofence warrant could easily capture the identities of everyone attending a church service, synagogue gathering, mosque prayer, or religious conference. In practice, that means the government could obtain what amounts to a list of worshippers.

The facts of the case illustrate the danger. The geofence search used by investigators in Chatrie encompassed Journey Christian Church in Midlothian, Virginia, capturing the location data of anyone present at the church at that time who carried a smartphone with Google location services enabled. 

That possibility raises profound First Amendment concerns. Location data can expose deeply personal religious information, including “faith affiliation; sacrament participation; belief shifts via changing attendance or visiting a new church; or involvement in recovery ministries.” 

The Supreme Court has long recognized that government surveillance of association can chill constitutional rights. Americans who believe their religious participation may be quietly recorded by the government may think twice before attending services or participating in religious life.

That chilling effect is precisely what the First Amendment was designed to prevent.

PPSA’s brief urges the Court to recognize that geofence warrants do more than raise Fourth Amendment questions about search and seizure. They also threaten the First Amendment freedoms that protect Americans’ ability to worship, gather, and associate without government monitoring.

After all, in the digital age, tracking where people go can reveal who they are, what they believe, and whom they stand beside.
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The Supreme Court now has the opportunity to make clear that the Constitution protects those freedoms from the reach of dragnet surveillance.

​PPSA filed a brief asking the U.S. Supreme Court to take up the case of Eric Tyrell Johnson, a Maryland man convicted of drug crimes after police brought a drug-sniffing dog to the door of his apartment. When the dog gave a “positive alert” for contraband, the officers obtained a warrant to enter his apartment and found the evidence they suspected was there.
 
Yet at the time of the “sniff-sniff” at Johnson’s door, the police lacked probable cause sufficient for a warrant. The Fourth Circuit Court of Appeals nevertheless upheld Johnson’s conviction.
 
Does this smell right to you? Or was this olfactory intrusion a warrantless search in violation of the Constitution’s Fourth Amendment?
 
This case raises more questions. Would the Framers, who wrote that amendment requiring a probable cause warrant, recognize its application to modern apartment buildings, where dozens or hundreds of occupants share walls and live side by side?
 
And what would it ultimately mean for the wider privacy rights of society if the Court were to allow such searches to remain in place?
 
From Place to Kyllo: Preserving the Fourth Amendment
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The logic of the Fourth Circuit was derived from United States v. Place (1983). In that case, the Supreme Court held that the combination of an airport canine sniff of luggage in a public setting that could (supposedly) only detect drugs was “sui generis” (court-speak for “unique”) and not a Fourth Amendment search.
 
In our brief, we remind the Court to keep Place (a well-named case, if ever there was one) in its place as a narrow, context-specific rule. Place does not apply to homes, which the Fourth Amendment has always treated as sacrosanct.
 
A better precedent is Kyllo v. United States (2001), in which heat-imaging technology penetrated the walls of a home to reveal intimate details inside it. The Supreme Court found that the use of such penetrative sense-enhancing technology to expose the occupants and interior of a home constituted a search requiring a probable-cause warrant. Thus, Kyllo better follows the original understanding of the Fourth Amendment, focusing on what is being searched and how, not whether the thing the government is looking for is legal or not.
 
PPSA’s brief underscores that in a similar way: dogs bred and trained to find drugs function as biological sense-enhancing technology. Although dogs have been man’s best friend for – well, forever – their use as a drug detection device began only several decades ago. Just like thermal imaging, a canine sniff detects interior activity – odors – without entering the home. As in Kyllo, this technique improperly accessed private information from the interior of a home without a warrant. 
 
PPSA’s brief warns the Court that if police canines can sniff at apartment thresholds without a warrant, it effectively deputizes police to probe deeply into people’s homes using other tools that amplify human senses. That principle erodes privacy at its very core.
 
Where Does Privacy Begin in Shared Spaces?

But the Court doesn’t have to rely on exotic technology to analyze this case. In Florida v. Jardines (2013), the Court held that a dog sniff at a home did constitute a Fourth Amendment search because officers intruded on the home’s “curtilage” – the property around a house in which a resident has a reasonable expectation of privacy.
 
Lower courts have split over what curtilage means when the home is an apartment door in a shared hallway. Some have said that common hallways aren’t curtilage because tenants lack exclusive control over them. The Fourth Circuit took exactly that view in Johnson. But that leaves the vast number of American apartment dwellers as second-class citizens when it comes to Fourth Amendment protection of their homes.
 
Modern Homes and Founding-Era Privacy

We also reminded the Court that the modern apartment poses nothing new to the Fourth Amendment. When the Fourth Amendment was submitted to the states in 1789, cities from Charleston to Boston were already thick with rowhouses and boarding houses. The Framers, well acquainted with multi-unit dwellings, would have understood that a person’s “house” could be part of a larger structure when they drafted the Fourth Amendment. 
 
Thus, there is nothing in the Fourth Amendment’s text or original meaning that suggests that privacy protections disappear simply because a dwelling shares walls or hallways with others.
 
A New Governing Principle for Sense-Enhancing Tech?

Most important of all, if the Fourth Circuit’s rule stands – that drug-sniffing canines can be deployed at an apartment door without a warrant – it will endorse a new governing principle: that law enforcement can use any sense-enhancing device or technique to probe inside homes.
 
Warrantless, deep-privacy intrusions under this rule could become ubiquitous. GPS, olfactory sensors, bioengineered animals, and other emerging tools could become routine justifications for ignoring warrants. The principle could allow supposedly narrow-searching devices atop every roving police car or on every street corner to scan all passersby.
 
“Surely,” we told the Court, “the Founders’ expectation of privacy would not allow such a dystopian outcome.” That is why we are asking the Court to reassert the historical and textual guardrails of the Fourth Amendment in this case.

The Project for Privacy & Surveillance Accountability is asking the U.S. Supreme Court to consider whether the Fourth Amendment allows law enforcement to use geofence warrants to retroactively track the movements of everyone in a defined area. These so-called “reverse warrants” involve law enforcement’s request for information from technology companies – like Google, Apple, Snapchat, Lyft, or Uber – that allows them to identify potential suspects in a crime.
 
This case began with a robbery in 2019 of $200,000 from a credit union in Midlothian, Virginia. Detectives soon hit a dead end in a search for suspects. So they served Google with a geofence warrant to provide certain cellphone data for everyone who passed through a circumscribed area around the credit union.
 
As a result, people suspected of no crime had their personal information examined by police. Targets included residents of a nursing home, diners and wait staff at a Ruby Tuesday restaurant, and guests who had checked into a Hampton Inn. The search led to the arrest and guilty plea of one Okello T. Chatrie, who now seeks to exclude this evidence on constitutional grounds.
 
Federal Judge Mary Hannah Lauck noted that because Google logs cellphone users’ location 240 times a day, technology gives police “an almost unlimited pool from which to seek location data” in a broad area in which everyone has “effectively been tailed.” But the U.S. Court of Appeals for the Fourth Circuit, sitting en banc to review a divided panel decision, held that this geofence warrant did not violate the Fourth Amendment.
 
The U.S. Supreme Court is now set to take up this question. In our brief, we are telling the Court that such dragnet surveillance is fundamentally incompatible with the Fourth Amendment’s core protections. 
 
Geofence Warrants Are “Digital General Warrants”
 
One of the primary abuses that motivated the Founders to create the Fourth Amendment was the use in colonial times of general warrants – broad search authorizations that allowed the King’s agents to rummage through private lives and property without individualized suspicion. Geofence warrants are their modern equivalent.
 
Instead of naming a person or place to be searched based on probable cause, geofence warrants similarly authorize the government to sift through massive location databases to identify people who might be worth investigating.
 
PPSA told the court that these warrants invert the constitutional order – everyone becomes a suspect first, and probable cause, if it appears at all, comes afterward.
 
The Supreme Court’s Carpenter Decision Was Not a Narrow Exception
 
Lower courts have struggled to apply the Supreme Court’s landmark decision in Carpenter v. United States (2018), which held that people have a reasonable expectation of privacy in long-term cellphone location records, even when those records are held by a third party. In Chatrie, the Fourth Circuit treated Carpenter as a narrow exception limited to long-term tracking of a single suspect. PPSA demonstrates that this take misreads the case entirely. 
 
Carpenter reaffirmed a broader principle: Fourth Amendment protections must preserve the level of privacy that existed at the nation’s founding, even as technology evolves. The fact that data is held by a third party – or that the government demands only a “slice” of a much larger tracking database – does not erase reasonable expectations of privacy. A two-hour window into a comprehensive location history can still reveal intensely private information – where someone worships, seeks medical care, attends political meetings, or simply lives their daily life.
 
PPSA is telling the Court that the privacy concerns raised by geofence warrants are even more severe than those in Carpenter, because they involve mass surveillance of unknown and unsuspected individuals. This is not targeted policing. It is suspicionless data mining.
 
Your Privacy Rights Depend on Where You Live
 
Courts across the country are sharply divided on this issue. The Fourth and Eleventh Circuits have suggested that geofence searches may not even trigger the Fourth Amendment. By contrast, the Fifth Circuit has correctly recognized that geofence warrants are unconstitutional in nearly all circumstances because they lack particularity and probable cause.
 
That split leaves Americans’ privacy rights dependent on geography, and in the case of Texas, whether state or federal proceedings are involved. PPSA urges the Supreme Court to step in now, before this powerful surveillance tool becomes permanently normalized.
 
The Constitution Must Keep Up with Technology
 
As PPSA warns, geofence warrants are only the beginning. We told the High Court:
 
“Fourth Amendment protections are not categorically lost when a person shares or stores his data with a third party while maintaining reasonable expectations and assurances of privacy. The Court should …  prevent a contrary understanding of Carpenter from continuing to erode Americans’ privacy – especially now, as third-party storage becomes more ubiquitous and artificial intelligence becomes powerful enough to piece together intimate information from seemingly innocuous details about a target’s life.”
 
The data that this practice puts at risk is not limited to location. The government has used other forms of these “reverse search warrants” to extract other private data, such as identifying anyone who has searched for a specific phrase or forcing commercial genealogy companies to allow access to their DNA databases.
 
Advances in artificial intelligence already allow law enforcement to infer locations from photos and videos, even when no geolocation data is attached. Without firm constitutional limits, today’s location dragnet could become tomorrow’s visual surveillance dragnet.
 
The Fourth Amendment’s precise wording is designed to prevent unchecked surveillance. PPSA’s calls on the Supreme Court to reaffirm that Americans do not surrender their constitutional rights simply by carrying a cellphone.

​The Fourth Amendment to the Constitution requires law enforcement to obtain a warrant supported by probable cause before entering our homes. That very American principle has roots in English law, in the spirit of the 18th century prime minister who said that “the poorest man may, in his cottage, bid defiance to all the forces of the Crown.”

But another doctrine, the “community caretaking” standard, emerged from an understanding that the police may, in certain emergencies, enter a home without a warrant. In Brigham City v. Stuart (2006), the Court allowed police entry when there is an “objectively reasonable basis” for believing that someone inside is in danger of physical harm or in need of aid.

The U.S. Supreme Court in 2021 found, in Caniglia v. Strom, limits to this “community caretaking” exception to the warrant requirement. Last week, however, the Court took a step back in favor of warrantless entry in Case v. Montana, finding reason in common law to uphold the conviction of William Case.

A Montana resident, Case had repeatedly threatened suicide. When police showed up to perform “a welfare check” at Case’s home after receiving a distressing call from his girlfriend, they saw an empty holster and what appeared to them to be a suicide note on a table. Case had also threatened to kill any police officer who entered his home. The police eventually entered Case’s home without a warrant, found Case hiding in a closet with a black object in his hand, and shot him in the stomach.

Case survived and went to court to seek the exclusion of any evidence obtained from this warrantless intrusion. The Supreme Court ruled unanimously against him. The facts of this case, like the proverbial camel’s nose thrust under a tent, are undeniably ugly. But ugly or not, Case v. Montana is still a camel’s nose – one that portends danger for privacy.

This case has two underlying complexities to keep in mind whenever the Court reviews future cases on the emergency entry exception.

The first concern is the Court’s central reliance on common law. Justice Neil Gorsuch, in a concurring opinion, wrote that: “From before the founding through the present day, the common law has generally permitted a private citizen to enter another’s house and property in order to avert serious physical harm.”

The problem with Justice Gorsuch’s reliance on this “accumulated learning of common law” is that it is still trumped by the U.S. Constitution. There is no “community caretaking exception” to be found in the Fourth Amendment.

A second danger is that the community caretaking exception will be broadened.

In our brief to the Court, we warned about about the “diluting effect such a low bar for emergency-aid searches would cause in other contexts – especially regarding electronic devices … it seems inevitable that lowering the burden for warrantless home invasion would lower the burdens for warrantless invasion of all other repositories of private information.”

Millions of Americans have sensitive information in their phones – apps for alcohol, drug, and gambling addictions; apps for prayer requests; apps for pregnancy symptoms; apps for financial issues; and apps for romance. Cellphones can track Americans’ location, and data that reveals where an American worships, banks, organizes political activities, and maintains a network of friend and associates.
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When the Court lowers the bar for warrantless entry into a home, it weakens constitutional protections everywhere else – especially in a world where our most intimate lives reside on digital devices. If this logic continues unchecked, today’s emergency entry into a house could tomorrow become emergency entry into a phone, a cloud account, or an entire digital life. That would be the kind of “general warrant” the Fourth Amendment was written to prevent.

​The U.S. Supreme Court will soon have a chance to reverse the dangerous precedent set by the Montana Supreme Court in Case v. Montana, which held that officers may enter a home based on mere suspicion of an emergency – instead of the stricter probable cause standard. Unless this Montana decision is reversed, the “community caretaker” welfare-check doctrine will be revived, gutting the Fourth Amendment’s protection of the home from warrantless intrusion.
 
The outcome of this case is far from certain, with U.S. Solicitor General John Sauer now urging the Supreme Court to sustain Montana’s lower standard.
 
A Step Backward
Here are the facts of this case: In 2021, Montana police responded after William Trevor Case’s ex-girlfriend reported suicidal threats and a “clicking” sound on their call. Officers forcibly entered Case’s home, discovered a firearm, and used that evidence to convict him of assaulting an officer.
 
The Montana Supreme Court refused to recognize a Fourth Amendment violation that would have suppressed this evidence. The court explained that “requiring probable cause of a criminal violation would make no sense in the context of emergencies ‘wholly divorced from a criminal investigation.’”
 
This reasoning is dangerous. It equates a home entry to a stop-or-frisk standard fit for automobile or street encounters. This ignores Supreme Court precedent, which has consistently held stricter protections for homes.
The decision invites pretextual entries into homes under the guise of “help.”
 
Worse, Montana revived the “community caretaker” justification. If upheld, this would undermine the Supreme Court’s holding in Caniglia v. Strom (2021), which rejects the idea that general “caretaking” justifies warrantless home entries.
 
The Government’s Hollow Case
The Solicitor General’s brief argues that the Fourth Amendment’s “reasonableness” standard, not probable cause, should govern such entries, because the Constitution confines probable cause to warrants.
 
Under this circular reasoning, discarding probable cause is proof enough that a warrant isn’t needed.
 
Yet the Fourth Amendment does not permit the probable cause standard to evaporate when someone invokes an “emergency.” To permit lower thresholds is to allow a backdoor into the home whenever officers claim they reasonably believe danger exists – a recipe for arbitrary and after-the-fact justification.
 
The same logic threatens to bleed into digital surveillance contexts. PPSA has long warned that if the home, the most sacred zone of privacy, can be entered on less-than-probable-cause grounds, then electronic devices (which contain privacies at least as intimate as a home) will be vulnerable to similar intrusion. Sauer’s brief would turn the Fourth Amendment into a permission slip.
 
The Court Should Hold Firm
Given the Montana court’s flawed approach and the Solicitor General’s weak argument, the Supreme Court should reverse and remand with instructions to suppress the evidence.
 
The privacy of the American home is too important to allow police to invade homes based on nothing but speculation.

In June, the U.S. Supreme Court granted the petition to hear Case v. Montana after PPSA filed the only brief supporting the Court’s review of a decision of the Montana Supreme Court.

PPSA has now filed its brief on the merits of the dispute. We made it clear that Case v. Montana is a precious opportunity to restore the Framers’ original vision of sharp limits on exceptions to the Fourth Amendment. The Framers jealously guarded privacy. Exceptions to the warrant requirement – exigent circumstances like chasing a bank robber into his home – had to be so pressing (and so obvious) that not granting them would be unreasonable. 

We've since veered off course. A new doctrine introduced in the mid-20th century, “emergency aid,” has threatened to grow into a catch-all category, a Trojan Horse by which the Fourth Amendment is thoroughly subverted. The temptation for law enforcement (and the courts) to treat everything as an “emergency” has never been greater than in this always connected, instant gratification digital age. 

We therefore ask the Court to remind our institutions to take two deep breaths before brushing aside the Fourth Amendment. We told the Court:

1. “The exception does not apply unless the entry is reasonably expected to alleviate, rather than worsen” the emergency. It is all too easy to say, as the State of Montana and the lower courts did in Case, that the police were just doing their job because they were “there to help.” Under that banner, all manner of constitutional violations could be forgiven. Yet the act of entering someone's home without a warrant was anathema to the Framers.
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2. For the Founders, a “home” was the most sacred – and hence the most protected – place in a person’s life. If the Fourth Amendment condones a violation of that sacred, private space, then it also would logically condone a violation of less protected spaces, such as our digital devices. As we told the Court, “If the police do not violate the Fourth Amendment when they search a home or a phone while acting under a valid warrant exception, then anything incriminating they see in that capacity may be used against a person in a criminal prosecution.”

Then as now, exigencies that permit warrantless searches of persons, homes, and property must be defined narrowly, specifically, and in ways that preserve the Court’s respect for what it has called the “privacies of life.” 

Lowering the standard for warrantless “home” entry lowers it for everything. Just because our effects are vastly more digital (and diffuse) today, we have no less a right to be secure in our personal effects and our very lives.
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We all know how Troy fell. It is time for the Court to take a good look inside the doctrine of exceptions to the Constitution.

​The U.S. First Circuit Court of Appeals in 2024 held that the IRS did not violate the Fourth Amendment when it scooped up the financial records of one James Harper through a broad dragnet of the Coinbase cryptocurrency exchange. The court based this finding on a sweeping interpretation of the “third-party doctrine,” which “stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”
 
Given the terabytes of personal data that technology forces us to hand over to third-party companies, including our most intimate data – personal communications, online searches, health issues, and yes, financial holdings – does this mean that, as the First Circuit and other lower courts have ruled, there is essentially “no legitimate expectation of privacy” in that data?
 
Consider that the U.S. Supreme Court has repeatedly held that the Fourth Amendment protects “that degree of privacy against government that existed when [it] was adopted.” Times change and technology evolves. Any inquiry into reasonableness should require a periodic recontextualizing of what the Founders intended. That’s not anti-originalism; it’s just a common-sense application of original intent with new technology and capabilities.
 
The Supreme Court did just that in Carpenter v. United States, holding that the warrantless seizure of cell phone records constitutes a Fourth Amendment violation. In this case, at least, the high Court held that a reasonable expectation of privacy exists even when information is held by a third party.
 
As the Court wrote, “when an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.”
 
That goes not only for cell phone records but for any data that is supposed to be private.
 
In our brief that PPSA filed with the Court, we explain that:
 
“Despite Carpenter’s clear warning against allowing the third-party doctrine to degrade privacy via a ‘mechanical interpretation of the Fourth Amendment’ … lower courts have generally failed to heed that warning. Rather, they mechanically first ask if the information was disclosed to a third party and then treat this disclosure as a complete carveout from Fourth Amendment protections unless the circumstances closely or identically match Carpenter’s narrow facts.”
 
In this era of breakneck technological change and cloud computing, much of our personal information is disclosed to third parties – even information of the most sensitive kind. An interpretation that third-party disclosure automatically nullifies your right to privacy is a flawed approach in the 21st century. 
 
As we demonstrated in our brief, the Supreme Court must act to “prevent a contrary understanding of Carpenter from continuing to erode Americans’ privacy as third-party storage becomes ubiquitous and artificial intelligence becomes powerful enough to piece together intimate information from seemingly innocuous details about a target’s life.”  
 
Technology is evolving too robustly and too rapidly for the third-party doctrine to remain stuck in the era of paper bills. The First Circuit’s extreme interpretation of the third-party doctrine is a quaint vestige of a prior age, no longer equal to technologies that the Supreme Court ruled contain all “the privacies of life,” and it would make the Fourth Amendment a mere piece of ink on parchment rather than a true safeguard of Founding-era levels of privacy.

​“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter …”
                                                                        William Pitt the Elder, 1763
 
The U.S. Supreme Court in 2021 reaffirmed the sanctity of the home in Caniglia v. Strom, restricting warrantless entry into a home for “community caretaking” in order to conduct a wellness check on an American in his or her home.
 
Despite this clear precedent, the Supreme Court of Montana allowed warrantless entry into William Case’s home under the “community caretaker” exception supported by a wildly lenient standard that merely requires “specific and articulable facts.” (In this instance, Case v. Montana, Case’s ex-girlfriend reported to police that she thought Case might be suicidal.) On Monday evening, PPSA filed a brief asking the U.S. Supreme Court to review Montana’s decision and preserve the Caniglia standard.
 
The creeping expansion of the “community caretaking” exception extends far beyond the law. Common law has long held that officers could enter a home without a warrant only to apprehend a fleeing felon, or if police witnessed a fight or other event that could lead to imminent harm. There is no law from the Founding-era that would have allowed the police to enter a person’s home without a warrant for “community-caretaking.”
 
PPSA told the Supreme Court:
 
“Another powerful reason to grant review is the diluting effect such a low bar for emergency aid searches would cause in other contexts – especially regarding electronic devices … It seems inevitable that lowering the burden for warrantless home invasion would lower the burdens for warrantless invasion of all other repositories or private information.”
 
If the Montana Supreme Court’s ruling holds, this camel’s nose of community caretaking will threaten to admit not just the whole camel but other strange beasts. What is at stake is ultimately not just the long-held “castle and fortress” view of home privacy that traces back to English common law. It is also that an entry into a home will naturally lead to the next logical step – to “check-in” on someone’s well-being by breaking into the contents of their smartphone or other electronic devices.
 
Ninety-eight percent of Americans own a cellphone, and 91 percent own a smartphone. The Supreme Court found that in Riley v. California (2014) a “phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”
 
Millions of Americans have sensitive information in their phones – apps for alcohol, drug, and gambling addictions; apps for prayer requests; apps for pregnancy symptoms; apps for financial issues; and apps for romance. Cellphones can track Americans’ location, and data that reveals where a person worships, banks, organizes political activities, and a network of friends and associates.
 
If the government may enter the home without a warrant based only on a reasonable belief that an emergency exists – far short of probable cause – the government will surely treat electronic sources of information the same way. The expansion of this doctrine will pose an even greater threat to privacy and the ultimate integrity of the Fourth Amendment.
 
We told the Supreme Court: “The insidious branding almost writes itself: ‘Big Brother’ may be ‘watching you,’ but it is for your own good!” For all these reasons, PPSA urges the Court to grant the petition and hear this case.

​PPSA announced today the filing of an amicus brief asking the U.S. Supreme Court to take up a case in which X Corp., formerly Twitter, objects to surveillance and gag orders that violate the First Amendment and pose a threat to the Fourth and Sixth Amendments as well.
 
When many consumers think of their digital privacy, they think first of what’s on their computers and shared with others by text or email. But the complex, self-regulating network that is the internet is not so simple. Our online searches, texts, images, and emails – including sensitive, personal information about health, mental health, romances, and finances – are backed up on the “cloud,” including data centers like X Corp.’s that distribute storage and computing capacity.
 
Therein lies the greatest vulnerability for government snooping. The growth of data centers is prolific, rising from 2,600 to 5,300 such centers in 2024. And with it, so have government demands for our data.
 
When federal agencies – often without a warrant – seek to access Americans’ personal data, more often than not they go to the companies that store the data in places like these data centers. For years, this power involved large social media and telecom companies. The power of the government to extract data, already robust, increased exponentially with the reauthorization of FISA Section 702 in April, which included what many call the “Make Everyone a Spy Act.” This provision defines an electronic communication service provider as virtually any company that merely has access to equipment, like Wi-Fi and routers, that is used to transmit or store electronic communications.
 
On top of that, the government then slaps the data center or service provider with a Non-Disclosure Order (NDO), a gag order that prevents the company from informing customers that their private information has been reviewed. One such company – X Corp. – has been pressing a constitutional challenge against this practice regarding a government demand for former President Trump’s account data. PPSA has joined in an amicus brief supporting X’s bid for certiorari, asking the Court to consider the constitutional objections to government conscription of companies that host consumers’ data as adjunct spies, while restraining their ability to speak out on this conscription.
 
In the case of X, the government has seized the company’s records on customer communications and then slapped the company with an NDO to force it to shut up about it. The government claims this secrecy is needed to protect the investigation, even though the government itself has already publicized the details of its investigation. Whatever you think of Donald Trump, this is an Orwellian practice.
 
PPSA’s amicus brief informed the Court that the gag order “makes a mockery of the First Amendment’s longstanding precedent governing prior restraints. And it will only become more frequent as third-party cloud storage becomes increasingly common for everything from business records to personal files to communications …”
 
The brief informs the Court: “NDOs can be used to undermine other constitutionally protected rights” beyond the First Amendment. These rights include the short-circuiting of Fourth Amendment rights against warrantless searches and Sixth Amendment rights to a public trial in which a defendant can know the evidence against him.
 
Partial solutions to these short-comings are winding their way through the legislative process. Sen. Mark Warner, Chairman of the Senate Intelligence Committee, introduced legislation to narrow the scope of businesses covered by the new, almost-universal dragooning of businesses large and small as government spies – though House Intelligence Chairman Mike Turner is opposing that reasonable provision. Last year, the House passed the NDO Fairness Act, which requires judicial review and limited disclosures for these restraints on speech and privacy.
 
As partial solutions wend their way through Congress, this case presents a number of well-defined concerns best defined by the Supreme Court.

In this age of “corporate social responsibility,” can a government regulator mount a pressure campaign to persuade businesses to blacklist unpopular speakers and organizations? Would such pressure campaigns force banks, cloud storage companies, and other third parties that hold targeted organizations’ data to compromise their clients’ Fourth as well as their First Amendment rights?
 
These are just some of the questions PPSA is asking the U.S. Supreme Court to weigh in National Rifle Association v. Vullo.  
 
Here's the background on this case: Maria Vullo, then-superintendent of the New York Department of Financial Services, used her regulatory clout over banks and insurance companies in New York to strongarm them into denying financial services to the National Rifle Association. This campaign was waged under an earnest-sounding directive to consider the “reputational risk” of doing business with the NRA and firearms manufacturers.

Vullo imposed consent orders on three insurers that they never again provide policies to the NRA. She issued guidance that encouraged financial services firms to “sever ties” with the NRA and to “continue evaluating and managing their risks, including reputational risks” that could arise from their dealings with the NRA or similar gun promotion organizations.
 
“When a regulator known to slap multi-million fines on companies issues ‘guidance,’ it is not taken as a suggestion,” said Gene Schaerr, PPSA general counsel. “It’s sounds more like, ‘nice store you’ve got here, it’d be shame if anything happened to it.’”
 
The U.S. Court of Appeals for the Second Circuit reversed a lower court’s decision that found that Vullo used threats to force the companies she regulates to cut ties with the NRA. The Second Circuit reasoned that: “The general backlash against gun promotion groups and businesses … could (and likely does) directly affect the New York financial markets; as research shows, a business's response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.”

You don’t have to be an enthusiast of the National Rifle Association to see the problems with the Second Circuit’s reasoning. Aren’t executives of New York’s financial services firms better qualified to determine what does and doesn’t “directly affect financial stability” than a regulator in Albany? How aggressive will government become in using its almost unlimited access to buy or subpoena data of a target organization to get its way? We told the Court: “Even the stability of a single company is not enough; the government cannot override the Bill of Rights to slightly reduce the rate of corporate bankruptcies.”
 
In our brief, PPSA informs the U.S. Supreme Court about the dangers of a nebulous, government-imposed “corporate social responsibility standard.” We write:
 
“Using CSR – a controversial theory positing that taking popular or ‘socially responsible’ stances may increase corporate profits – to justify infringement of First Amendment rights poses a grave threat to all Constitutionally-protected individual rights.”
 
PPSA is reminding the Court that the right to free speech and the right to be protected from government surveillance are intwined.

​The Ninth Circuit Court of Appeals in March issued a controversial opinion in Twitter v. Garland that the Electronic Frontier Foundation calls “a new low in judicial deference to classification and national security, even against the nearly inviolable First Amendment right to be free of prior restraints against speech.”
 
X (née Twitter) is appealing this opinion before the U.S. Supreme Court. Whatever you think of X or Elon Musk, this case is an important inflection point for free speech and government surveillance accountability.
 
Among many under-acknowledged aspects of our national security apparatus is the regularity with which the government – through FBI national security letters and secretive FISA orders – demands customer information from online platforms like Facebook and X. In 2014, Twitter sought to publish a report documenting the number of surveillance requests it received from the government the prior year. It was a commendable effort from a private actor to provide a limited measure of transparency in government monitoring of its customers, offering some much-needed public oversight in the process. The FBI and DOJ, of course, denied Twitter’s efforts, and over the past ten years the company has kept up the fight, continuing under its new ownership.
 
At issue is X’s desire to publish the total number of surveillance requests it receives, omitting any identifying details about the targets of those requests. This purpose is noble. It would provide users an important metric in surveillance trends not found in the annual Statistical Transparency Report of the Office of the Director of National Intelligence.

Nevertheless, in April 2020, a federal district court ruled against the company’s efforts at transparency. In March 2023, the Ninth Circuit upheld the lower court’s ruling, sweeping away a substantial body of prior restraint precedent in the process.
 
Specifically, the Ninth Circuit carved out a novel exemption to long established prior restraint limitations: “government restrictions on the disclosure of information transmitted confidentially as part of a legitimate government process.”
 
The implications of this new category of censorable speech are incalculable. To quote the EFF amicus brief:
 
“The consequences of the lower court’s decision are severe and far-reaching. It carves out, for the first time, a whole category of prior restraints that receive no more scrutiny than subsequent punishments for speech—expanding officials’ power to gag virtually anyone who interacts with a government agency and wishes to speak publicly about that interaction.”
 
This is an existential speech issue, far beyond concerns of party or politics. If the ruling is allowed to stand, it sets up a convenient standard for the government to significantly expand its censorship of speech – whether of the left, right or center. Again, quoting EFF, “[i]ndividuals who had interactions with law enforcement or border officials—such as someone being interviewed as a witness to a crime or someone subjected to police misconduct—could be barred from telling their family or going to the press.”
 
Moreover, the ruling is totally incongruous with a body of law that goes back a century. Prior restraints on speech are the most disfavored of speech restrictions because they freeze speech in its entirety (rather than subsequently punishing it). As such, prior restraint is typically subject to the most exacting level of judicial scrutiny. Yet the Ninth Circuit applied a lower level of strict scrutiny, while entirely ignoring the procedural protections typically afforded to plaintiffs in prior restraint cases. As such, the “decision enables the government to unilaterally impose prior restraints on speech about matters of public concern, while restricting recipients’ ability to meaningfully test these gag orders in court.”
 
We stand with X and EFF in urging the Supreme Court to promptly address this alarming development.

​The Colorado Supreme Court issued a 5-2 ruling that leaves an urgent privacy question wreathed in a cloud of ambiguity. As a result, Americans must worry that merely being in the same location as someone who might have done an internet search for suspicious material could end up with their own search data being examined by the police.
 
So-called “reverse warrants” are a powerful new type of search warrant enabled by the collection of Americans’ private data. Reverse warrants allow the police to sift through the search histories of thousands of people. They come in two types: geofence warrants, which allow police to identify people whose devices were in a certain area at a certain time, and reverse keyword warrants, which allow police to identify who searched certain keywords, phrases, or addresses online.
 
These warrants and their underlying technologies allow police to track any person and search through their data. Instead of developing suspicions about a person based on factual evidence and then applying for a warrant to search that specific person – as required by the Fourth Amendment – reverse warrants involve looking through the search history or location history of many innocent people in the hopes of finding a suspect.
 
Reverse warrants exist in legal limbo. There is little precedent or written law that govern this new form of data analysis. Accordingly, some courts have treated reverse warrants as they would any standard warrant.
 
Seymour v. Colorado is the first case to address the constitutionality of reverse warrants. This case springs from a particularly heinous crime – an arson that killed a family of five. Two months later, the Denver Police Department obtained a reverse keyword warrant. As a result of the warrant, Google was forced to hand over the data of eight people, five of whom had Colorado-based IP addresses that had searched for the location of the arson in a two-week period before the crime. Three suspects were eventually charged. One of them, Gavin Seymour, sued to suppress evidence obtained by the warrant on constitutional grounds.
 
The court held that “Seymour has a constitutionally protected privacy interest in his Google search history,” and that “Seymour’s Google search history implicates his right to freedom of expression.” The court also found that law enforcement obtained and executed the warrant in good faith, so the evidence shouldn’t be suppressed under the exclusionary rule.
 
Thus the court acknowledged the serious constitutional issues at play and still treated the reverse warrant as if it was just an ordinary search. The court stated that “the warrant required individualized probable cause and that its absence here rendered the warrant constitutionally defective.” Yet, somehow, it was still admissible evidence.
 
Five innocent people had their data searched. Another five innocent people were murdered in a fire. There is a lot at stake in this case, and a lot to unpack. Does a search of Google search histories by a given address satisfy the Constitution’s requirement for a particularized search? Can probable cause be asserted when the identity of the suspect is unknown? Could digital bystanders have evidence used against them from a search result unrelated to this particular crime?
 
Perhaps this case will advance to the U.S. Supreme Court, which could take this opportunity to articulate boundaries and rules for future searches. We’ve seen, however, a time lag in the Court’s addressing of new technologies. Congress should consider taking measures to protect privacy in reverse warrants before the Supreme Court is forced to weigh in.

The U.S. Supreme Court today declined to hear Wikimedia v. NSA, a lawsuit challenging the mass, secret surveillance of Americans’ online communications.
 
The ACLU had gone to court to challenge a National Security Agency program under the Foreign Intelligence Surveillance Act (FISA), which the agency uses to continuously monitor international and domestic communications across the internet’s main pathways.
 
“In analog terms, it’s as if government agents were opening the international letters passing through a U.S. post office en masse, reading the contents, and then keeping many of those letters in a file for years,” wrote Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, in a recent op-ed.
 
Goodlatte compared this intrusion by the government into American’s emails, web-browsing content, and search engine queries to the “general warrants” of the colonial era that had helped spark the American Revolution.
 
“Worse, the government asserts that this case cannot even be litigated,” said Gene Schaerr, PPSA general counsel. “Under the government’s interpretation of the ‘state secrets’ doctrine, major surveillance programs of the government can never be litigated.
 
“This denial shows all the more reason why Congress needs to step in and use the pending reauthorization of Section 702 – a principal surveillance authority in FISA – to close loopholes the government is exploiting.”

​The Supreme Court will consider whether to hear the Project for Privacy and Surveillance Accountability’s petition in Torcivia v. Suffolk County on Nov. 10.
 
The Second Circuit Court of Appeals ignored the obvious application of a SCOTUS ruling in Caniglia against the police for entering the home of a New York man to confiscate his guns on the basis of the “community caretaking” exception to the Fourth Amendment. The Second Circuit affirmed the right to do the same to another man in New York State on a similar, but more malleable “special needs” doctrine – which is essentially any priority the government deems important.
 
PPSA hopes the Supreme Court grants its petition and takes this opportunity to reinforce the plain meaning of its ruling and the Fourth Amendment.

​Is a “special needs exception” to the Fourth Amendment much different from a “community caretaking exception?” PPSA filed a brief before the U.S. Supreme Court demonstrating that it is not.
 
The U.S. Supreme Court ruled in 2021 in Caniglia that the police acted improperly by entering a man’s home and confiscating his guns under the “community caretaking” doctrine – in which the police are making a “welfare check” rather than acting as law enforcement officers. The High Court saw through this precedent from the 1970s and ruled that supposedly “non-investigative” intrusions into a home are what they seem to be – plain violations of the Fourth Amendment.
 
To the astonishment of many legal observers, the Second Circuit Court of Appeals ignored this unanimous Supreme Court opinion in a nearly identical case. In Torcivia v. Suffolk County, the Second Circuit applied a flexible “special needs exception” to the Fourth Amendment. One familiar example of this exception is when authorities decide that some local requirement, such as curbing drunk driving with spot checks, is necessary. But this case did not involve a car on the highway: it involved warrantless entry into a home and the confiscation of a citizen’s lawfully-owned firearms.
 
The government responded to our petition for the Court to hear Torcivia with the straight-face argument that the community caretaking exception is not the special needs exception. No one claimed it was. But we told the Court that the “logic underlying the special needs exception is indistinguishable from the logic this Court rejected in Caniglia.”
 
Our brief demonstrates to the Court that absent emergency circumstances or consent, if the “government can overcome the warrant requirement that has traditionally protected the home merely by pointing to an interest that the government feels is sufficiently strong, then the Fourth Amendment no longer serves as a meaningful limit on government power.”
 
We added:
 
“Respondents cannot escape that the Second Circuit applied the special needs exception to a seizure of firearms located in the home of a person not on probation or parole. That extension cannot be squared with this Court’s precedents or with the text, history, and tradition of the Fourth Amendment.”