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Rescuers armed with a range of techniques continue to search through the rubble in Venezuela.

The Supreme Court on Monday ruled that law enforcement conducted a Fourth Amendment search when it got a “geofence” warrant for Google location data to help solve an armed robbery. Justice Elena Kagan’s opinion for the court broadly endorsed privacy rights over dissent from Justice Samuel Alito that accused the majority of further destabilizing the law and doing so in a case in which, he said, the defendant will eventually lose.

Geofence warrants are used to locate phones that were in the area of a crime to help law enforcement identify suspects. The legality of such warrants has divided the lower courts and raised concerns for civil liberties, with one privacy group warning the justices ahead of the ruling that “the dragnet fishing expeditions that geofence warrants allow are not restricted to a small pond, but instead sweep in the full ocean of people who carry a cell phone.”

The justices considered the issue in the case of Okello Chatrie, who was convicted of armed robbery in Virginia with evidence from such a warrant.

Chatrie argued that law enforcement illegally invaded his property interest and privacy expectations. The government countered that he chose to share his location data with Google and that he lacked a constitutional interest in protecting it.

To answer the Fourth Amendment question, Kagan noted that the high court needed to decide 1) whether law enforcement technically conducted a “search” when they got Chatrie’s phone data and 2) if it was a search, whether it was a reasonable one.

In Monday’s ruling, the high court only addressed the first question. The answer, it said, was that the police did in fact conduct a search when they got the location information.

“An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information — even though for only a limited time, and from a third-party tech company,” Kagan wrote.

But she said the court is leaving the next step to the appeals court, which will have to answer whether the search was reasonable, meaning whether each of the search’s steps “was properly described with particularity and found to be supported by probable cause.”

Alito expressed confidence that Chatrie will lose in the end. The justice therefore faulted his colleagues in the majority for nonetheless using this case to make their latest pronouncement on privacy in the digital age.

“Although today’s decision will send seismic waves through our Fourth Amendment doctrine, not one iota of the majority opinion will affect the outcome of this case,” Alito wrote, adding that he couldn’t support what he called the “irresponsible escapade.” His dissent was fully joined by Justice Clarence Thomas and partially joined by Justice Amy Coney Barrett.

The Trump appointee added her own brief dissent to explain that she agreed with Alito that Chatrie lacked a reasonable expectation of privacy in data about his public movements that he voluntarily gave Google. But she said she didn’t take issue, as Alito did, with a previous landmark Fourth Amendment case that Alito accused the majority of gratuitously expanding, or with the court’s decision to review Chatrie’s case.

Alito said that no matter what the court would have decided, there was never any chance the defendant would prevail in the end because of the separate issue of whether law enforcement proceeded in good faith. The good-faith exception has long worked to deny even people who raise successful Fourth Amendment claims from benefiting from them.

Kagan’s opinion maintained that the ultimate issue was not settled by Monday’s opinion. She emphasized that the next step is up to the lower court. Depending on what happens there, the case could come back to the justices again.

Kagan’s opinion was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Brett Kavanaugh and Ketanji Brown Jackson. Justice Neil Gorsuch agreed with her bottom line but added a concurring opinion to explain how he would have gotten there differently. Jackson wrote a concurring opinion, joined by Sotomayor, saying that she would have gone further in specifying how the search in this case violated the Fourth Amendment.

Lower court judges who previously ruled against Chatrie on appeal said there were “twin risks” at play: “One is the risk that privacy will succumb to the evermore invasive technological capabilities at the hands of an evermore intrusive state. The other risk, which is just as real, is that of privileging those who break the law over those who would enforce it.”

At the April hearing, Roberts told Chatrie’s lawyer that if a person doesn’t want the government to have their location information, then “you just flip that off.” Roberts said people don’t need that feature on their phones, leading him to wonder: “What’s the issue?”

The lawyer said he took the chief justice’s point but that he still disagreed that people need to flip off their location history and other cloud services to avoid government surveillance. “I mean, by the same token, you don’t have to send email,” the lawyer said. “You can flick that off as well. But that doesn’t imply that you’re implicitly consenting to the government searching one’s email.”

The post Divided Supreme Court backs phone location privacy rights in ‘geofence’ warrant case appeared first on MS NOW.

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