New APPS

One of Monday’s Supreme Court rulings, Chatrie v. U.S., has flown under the radar, but I think it’s a potentially important privacy case.  The case concerns the police practice of geofenced searches, in which the police would map out an area, usually a specified radius around a crime scene, and demand all of the cellphone location history data of everyone who was in that space over a given time period. The question before the court was whether this practice constituted a search under the 4^th Amendment.  The answer was yes (and predictably so, imo), but the opinions offer a really interesting window into competing understandings of privacy and how that interacts with Third Party doctrine, which essentially says that you have no remaining privacy interest in information that you have voluntarily disclosed to a third party (like an Internet platform).  The majority opinion, authored by Justice Kagan, Justice Gorsuch’s concurrence, and Justice Alito’s dissent offer three different underlying theories of the handling the data: as tech regulation (Kagan), as contract (Alito) and as property (Gorsuch).

First, the basic case.  Justice Kagan explains:

“Suppose that investigators know a crime was committed at a particular place and time, but do not have a suspect. They may draw a “geofence”—a virtual perimeter—around the crime scene and get a warrant compelling a company to hand over data about the cell phones located in that area near the time of the crime. Following a process specified in the warrant, the company will turn over the cell-phone data and eventually identify by name one or more of the users thus disclosed .… Through a geofence warrant, police officers required Google to turn over Location History data revealing cell phones within the vicinity of a bank at around the time it was robbed. At the end of the multi-step process described in the warrant, Google gave the police three names. The Federal Government soon charged one of the individuals thus identified, petitioner Okello Chatrie, with committing the crime” (1-2)

As Justice Kagan says, there’s two questions here.  One is whether a person has a reasonable expectation of privacy in his cellphone data, such that accessing it requires a warrant. The second question is whether the warrant in this case was adequate – especially whether it was sufficiently specific to meet constitutional muster, and whether the multistep process that Google (to its credit) had negotiated for dealing with the large number of data requests it was getting satisfied 4th Amendment concerns.  The Court answered yes to the first question and sent the case back to the appellate court to answer the second.

1. Regulation. It seems to me that Justice Kagan fundamentally sees this as a problem of technology regulation, calibrated to a constitutional frame of course.  In this sense it’s a good example of hybrid thought between juridical and biopolitical regimes, if you want to think of it in Foucauldian terms (which I won’t pursue here).  The core of her argument is the extension of the earlier Carpenter v. U.S.(2018) ruling to the facts of the Chatrie case.  Since Carpenter found a privacy interest in cellphone location information that is automatically collected by the phones, the argument is pretty straightforward.  The core of her reasoning is that the location history data makes searching too easy without at least imposing a warrant requirement.  In the past, if the police wanted to know where somebody was, they had to tail them.  That costs a lot of scarce time and money.  With location history, you can pick everybody in an area (not knowing who they are at first), and then find out not just who they are, but where they’re going and where they’ve been – all with zero effort!  The data is also much more comprehensive than the data collected in Carpenter, as location history not only knows everywhere you’ve been, it is more accurate with regard to your physical location, and can even estimate what floor of a building you’re on.  As justice Kagan says, “A new technology should not transform what individuals had reasonably thought they could withhold from the Government” (15). But “what creates that concern is that the government can access all of a cell-phone user’s movements,
in both public and private places—that it possesses a virtual panopticon with which to scrutinize its citizens’ activities.” (21

In short: the cost of search has been dramatically reduced by the technology, which gives everyone less privacy than before.  On Third Party Doctrine, Kagan relies on the overwhelming amount of data released, the only quasi-voluntary nature of signing up for location history, and the ubiquity of cellphones.  This is what one might call the law and economics approach to regulation, broadly conceived. You see it in Becker on crime, and especially in the way that Lessig frames regulatory questions and technology.

2. Contract. In a typically dyspeptic dissent, Justice Alito doesn’t like much of anything about the majority opinion. He doesn’t think the case should have been heard, since Google has changed how it stores personal search history (basically, it is apparently now federated, so Google has nothing to hand over from its own servers). He thinks that Chatrie could not win an argument that would overcome a good-faith exception to a warrant rule (this strikes me as too tidy: you can’t overcome a good faith exception since “this Court has never provided guidance on how to apply the Warrant Clause when the police request geolocation data from a third party” (5), which is true, except that such guidance would never be forthcoming unless the Court issues a ruling.  So a good faith exception is available as long as the Court hasn’t ruled on an ambiguous new technique, and the good faith exception will prevent there ever being such a ruling. Nice!). He doesn’t like the Carpenter decision Kagan bases her opinion on (and frequently cites his dissenting opinion in that case), and so on.  The dissent is so cranky that Justice Barrett felt compelled to write her own one-paragraph dissent in which she announces “no quarrel” with either hearing the case or the Carpenter decision, just that she agrees that Chatrie “had no reasonable expectation of privacy in data about his public movements that he voluntarily disclosed to Google.”

What is interesting is the theory that seems to underlie Alito’s argument for why the Third Party doctrine defeats any privacy interest.  For his positive theory, he has two analogies.  First, he says that document production orders were not traditionally viewed as searches:

“To illustrate this point, imagine that Chatrie spent his free time taking road trips across the United States. And suppose that he entered into a contract with a travel agency, under which the agency would provide him valuable information about places to visit and activities to try as he traveled from place to place. Suppose that the contract, in exchange for these services, authorized the travel agency to maintain a detailed chronicle of Chatrie’s adventures and to use that information to develop its business, expand its offerings, and advertise to prospective customers. If a grand jury had subpoenaed the travel agency for the records of Chatrie’s travels, he would have no basis to object on search-and-seizure grounds” (8)

He adds that “Likewise, until Carpenter, this Court held that the Fourth Amendment protected a person’s security in only his own papers and effects, not those of a third party.” (9). So he had no interest in the information Google gave the police.  The theory that he would have such a property right (the one Gorsuch articulates, as we’ll get to) would “radically reconceptualize[] the traditional understanding of property rights” (9), though Alito does not offer a reason, instead citing a 1964 (!) law review article.  He adds another example:

“If Chatrie, instead of using Location History, had written and copyrighted a private memoir about his crimes, he would not have a Fourth Amendment claim if the police asked a proofreader whether Chatrie was at the credit union during the robbery” (9)

When he gets to Third Party doctrine, Alito says:

“Chatrie voluntarily conveyed his location information to Google, and Google created a digital paper trail of that information. Like the bank in Miller, Google was no neutral custodian in this arrangement. In exchange for allowing Chatrie to use its Location History service, Google could use his location information for its own business purposes, such as sending Chatrie location-targeted advertisements from third parties.” (12, internal cites omitted)

What stands out in all of these is that they depend on a classical imaginary of contract, which imagines two parties of roughly equivalent standing, negotiating the details of their arrangement.  The problem with this theory as applied is that it has very little to do with the mass-market, adhesion contracts that are on offer from companies like Google.  Kagan gets at this when she reminds readers that Google not only repeatedly told users to turn location history on, but it even suggested that the phone wouldn’t work properly unless they did.

The problems run a lot deeper than that (this is a slightly truncated version of how I put the complaint in this paper; I don’t claim to be saying anything hugely innovative, as more or less this argument is all over the privacy literature). The legal relation being constructed does not conform to any historical model of contract.  As Robin Kar and Margaret Jane Radin argue, if one takes the model of oral negotiation as paradigmatic, then the data privacy regime is best described as one of “pseudo-contract” because the terms and conditions include a profusion of boilerplate, advice, descriptive statements, and other verbiage …. Also, the notion of consent involved is, from this point of view, deeply pathological.  Most generally, consent hinges on a functioning notion of autonomy, which website practices often undermine.  Demands to consent to privacy practices are incessant, causing consumers to pay less attention to them individually.  Consent is often unwitting in that consumers don’t understand either the terms or the technology behind them.  They also don’t understand the consequences and risks of the site’s privacy practices.  Finally, as Kagan reiterates in the majority opinion, almost everybody pretty much has to have a cellphone these days.

3. Property. Thus for Alito.  Justice Gorsuch’s concurrence is a really good example of how he reasons in his best work.  He thinks that Kagan’s solution to the Third Party problem is ad hoc (3), and he is not obviously wrong in this. He thinks the entire Katz line of cases is mushy and not helpful, and so he argues that the geofencing should be construed a “search” because Chatrie’s data should be viewed as part of his “effects” (to quote the 4^th Amendment term), which at the time it was written apparently meant “property.”  So Chatrie has a property relation with what amounts to a digital diary:

“As I see it, Mr. Chatrie’s Location History data qualifies as his personal property. To appreciate why, start with this. As Google puts it, and no one seriously disputes, Location History serves as a “diary” or map “of a person’s travels.” At the time of the events in question, Mr. Chatrie’s agreement with Google referred to Location History as “your” (meaning, the user’s) “information.” Under the parties’ agreement, too, Mr. Chatrie was free to “review” and “edit” his location data. He was even free to export or delete that data “from Google’s servers at will.” Beyond all that, Google promised to protect his information against “unauthorized access, alteration, disclosure, or destruction.” Put simply, Mr. Chatrie had the rights to enjoy, manage, alter, dispose, and exclude others from what amounted to an electronic diary or map of his travels. And as someone who held that many “sticks in the bundle of rights . . . commonly characterized as property”—including the “most treasured” and “essential” right to exclude—he has a strong claim that the Location History data was his personal property.” (5, internal citations omitted).

This is a very clear answer to third party doctrine: just because you let somebody use your property doesn’t mean they can do anything they want with it!  Tenants have 4^th amendment rights (9). And “If you ‘[t]oss your keys to a valet at a restaurant’ or ‘[a]sk your neighbor to look after your dog while you travel,’ you may entrust your personal property to another and license him to do certain things with it, much as Mr. Chatrie did with his Location History data. But that hardly means that property is no longer yours” (9, internal citations omitted).

I have been very skeptical of treating data as property, mostly because that encourages its commercialization. But Gorsuch seems right to me: the arrangement with Google pretty clearly invites us to think of them as stewarding our property.  And it very cleanly answers Third Party Doctrine. That’s not nothing.