 Six weeks after the U.S. Supreme Court’s 6-3 opinion in Chatrie v. United States, it is just now becoming clear what a breakthrough opinion it actually was. This ruling leaves an altered legal landscape, one in which courts have fresh opportunities to apply stringent constitutional scrutiny to many intrusive technologies, ranging from automated license plate readers to internet search histories. At first, this ruling struck many legal observers as a welcome but modest expansion of Fourth Amendment law. Basing its conclusions on recent precedents, the Court held that whenever the government uses a geofence warrant to pinpoint an individual’s location history through cellphone data, it is performing a Fourth Amendment search. Stanford Law School professor Orin Kerr has now written a sharp analysis contending that Chatrie’s apparently narrow ruling is, in fact, a “blockbuster” that offers the most “rhetorically broad vision of the Fourth Amendment” in 140 years. We think he is right. Kerr writes that Chatrie “is an expansive pro-privacy opinion that advances new principles and throws into question a wide range of existing surveillance practices.” The Principle of Consumer Perception Much of Chatrie’s majority opinion was grounded in precedent, such as Carpenter v. United States. This 2018 ruling held that a warrant is required to track a person’s location history, while limiting that standard to location data collected from cell towers. “But a close look shows that Chatrie recasts precedents at every turn,” Kerr writes. “Chatrie alters the applicable approaches, adopts new standards, and drops old distinctions.” For example, a generation ago, the Fourth Amendment was widely understood to prohibit authorities from searching property and “effects” inside a home, a car trunk, or a suspect’s pockets without a warrant based on probable cause. Outside those protected spaces, authorities were – and are – generally free to tail people or rifle through their garbage. Chatrie demolished this inside/outside distinction. Data held in the cloud can now enjoy a level of protection similar to that of a document in a desk in one’s home. Another way Chatrie goes beyond Carpenter is by bringing users’ perceptions into the equation. Kerr writes: “It appears that a typical user’s perception of connection with data – generally a matter of app design and interface – can govern whether there are Fourth Amendment rights in the data after the data is disclosed.” The Intimacy of Data as a Factor Kerr notes that the ruling introduces new concepts into Fourth Amendment law, holding that data generated by ordinary activities on cellphones cannot be presumed to be voluntarily disclosed to third-party tech companies. And Chatrie reorients Fourth Amendment law around the intimacy of private information, rather than the manner in which it was obtained. Kerr quotes Justice Sonia Sotomayor’s concurrence in a prior case, in which she noted that GPS records contain a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” This reasoning from one justice in a 2012 case about GPS seems to have filtered into the majority’s thinking about technology in general. What’s Next? Where does the law go from here? Some courts will undoubtedly interpret Chatrie narrowly, restricting it to location data. Doing so, however, would ignore the broader implications of Justice Kagan’s majority opinion and its new standards. We can expect conflicting rulings as lower courts try to apply Chatrie to automated license plate readers, tower dumps, IP addresses, subscriber information, internet search terms, blockchain transactions, and online undercover operations. If lower courts are true to Chatrie, they will recognize a constitutional imperative to apply the Fourth Amendment to curb the unprecedented power of new technology to expose the entirety of a human life. Comments are closed.
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