As an adult living in 2026, you’ve almost certainly been complicit in the modern surveillance state simply by using a smartphone. Whether you read the fine print or not, you’ve probably agreed to share personal data – from your number of daily steps to where you shop – with the apps you use.
Read more Supreme Court Upholds Birthright Citizenship in Major Blow to Trump
On Monday, the Supreme Court effectively said the government cannot get around Fourth Amendment protections against unreasonable searches by going to those tech companies for the data of anyone near a crime scene at a given time.
“A cell-phone user is not to be viewed as sharing private information with third parties – which then can be freely passed on to the government – just by doing the ordinary things cell-phone users do,” Justice Elena Kagan for the 6-3 majority.
At issue is the law enforcement tactic known as “geofencing,” in which the authorities draw a virtual fence around a crime scene and seek a warrant to compel tech companies, like Google, to identify who was in that area during a specified time period.
It’s been used in some high-profile cases, including efforts to prosecute rioters at the Capitol on Jan. 6, 2021. Authorities contended that anyone other than lawmakers, staff and journalists inside the building between 2 p.m. and 6 p.m. on that day was probably trespassing.
How decisive a blow the ruling might prove to be against this approach remains to be seen. A divided lower court had let authorities use the data in this case under a “good-faith exception” – meaning law enforcement acted with the presumption that the geofencing warrant was valid.
The high court found “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.” But it left lower courts to determine whether the warrant was valid.
The Underlying Case
In May 2019, a robber brandishing a firearm held up a credit union on the outskirts of Richmond, Virginia. From witnesses and surveillance footage, the police learned that the individual had approached his target from a nearby church while appearing to talk on a cell phone.
He made off with nearly $200,000. When the trail ran cold, police asked a magistrate for a geofence warrant to make Google turn over data about cell phones located within a 150-meter radius of the credit union near the time of the robbery.
Google ultimately produced three cell-phone users’ identifying information, including from Okello Chatrie, “whose location data showed that he entered the geofence about 10 minutes before the robbery and headed toward a residential area immediately after leaving,” the court said.
Police searched Chatrie’s home and found money and a firearm matching one used in the crime. He later confessed and was convicted, but on appeal he sought to have the evidence obtained via the geofencing warrant dismissed, that the writ let the government “search first and develop suspicions later.”
His lawyers also said the geofencing warrant swept up the location data of millions of Google users – people who did not meet the traditional standard of probable cause.
The authorities that he had no reasonable expectation of privacy because use of Google’s location history function was voluntary. The Supreme Court called that argument “meritless” and said the geofencing warrant counted as a “search” subject to constitutional limits.
In a previous case, focused on the use of GPS surveillance, Justice Sonia Sotomayor underlined how “even short-term monitoring” of location information can provide “a wealth of detail about familial, political, professional, religious and sexual associations.”
This could include “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on,” she wrote.
We trade our location data for the convenience of maps, weather and instant connectivity – and sign off via user agreements barely anyone has actually read. This ruling says that language doesn’t (entirely) trump constitutional protections.
Read more Former NBA Players Malik Beasley, Ed Davis Indicted on Gambling-Related Charges
But you still might want to review your phone settings.
