Page 35 - TPA Journal November December 2024

oughfares and into private residences, doctor’s CSLI is approaching “GPS-level precision,” with
offices, political headquarters, and other potential- wireless carriers having the capability to “pin-
ly revealing locales.” “Accordingly, when the point a phone’s location within 50 meters.”
Government tracks the location of a cell phone it Many of the concerns expressed by Chief Justice
achieves near perfect surveillance, as if it had Roberts in his Carpenter opinion are highly
attached an ankle monitor to the phone’s user.” salient in the context of geofence warrants.
The Court concluded that the criminal defendant Perhaps the most alarming aspect of geofences is
had a “reasonable expectation of privacy in the the potential for “permeating police surveillance.”
whole of his physical movements.” As Chief Justice Roberts explained, modern cell
The Court then addressed the third-party doctrine, phones enable the government to achieve “near
which provides that generally, “a person has no perfect surveillance”; carrying one of these
legitimate expectation of privacy in information devices is essentially a prerequisite to participa-
he voluntarily turns over to third parties.” The tion in modern society, and users “compulsively
Court declined to apply the third-party doctrine to carry cell phones with them all the time.”
the collection of CSLI, notwithstanding the fact Geofences also exemplify the Court’s concern
that this data is technically voluntarily provided with pinpoint location data—this technology pro-
from users to private wireless carriers. As the vides more precise location data than either CSLI
Court noted, there is a “world of difference or GPS. Furthermore, obtaining data through
between the limited types of personal informa- geofences, like obtaining data through CSLI, is
tion” addressed in the Court’s prior third-party “remarkably cheap, easy, and efficient compared
doctrine precedent “and the exhaustive chronicle to traditional investigative tools.” With “just the
of location information casually collected by wire- click of a button,” the government can search the
less carriers today.” Furthermore, the Court found pinpoint locations of over half a billion people
the notion that users “voluntarily” provide this with Location History enabled.
information to private entities dubious. Carrying a But while we see the parallels between CSLI and
cell phone is “indispensable to participation in Location History data, our colleagues on the
modern society,” and, “[a]part from disconnecting Fourth Circuit—the first federal Circuit to address
the phone from the network, there is no way to whether geofencing is a “search” subject to the
avoid leaving behind a trail of location data.” “As Fourth Amendment—saw Location History data
a result, in no meaningful sense does the user vol- differently. Characterizing Location History data
untarily ‘assume[] the risk’ of turning over a com- as nothing more than a “record of a person’s sin-
prehensive dossier of his physical movements.” gle, brief trip,” the Fourth Circuit found that
Chief Justice Roberts’s majority opinion in geofencing does not contravene a person’s “rea-
Carpenter speaks at length about the privacy sonable expectation of privacy” because the data
interests inherent in location data, and it expresses implicated by geofences is “far less revealing than
grave concern with the government being able to that obtained in Jones[ or] Carpenter.” With great
comprehensively track a person’s movement with respect to our colleagues on the Fourth Circuit, we
relative ease due to the ubiquity of cell phone pos- disagree. While it is true that geofences tend to be
session. The Court acknowledged “some basic limited temporally, the potential intrusiveness of
guideposts” in resolving questions related to the even a snapshot of precise location data should
Fourth Amendment’s protections of privacy inter- not be understated. As two commentators noted:
ests, including securing “the privacies of life
against arbitrary power,” and placing “obstacles in [E]ven a brief snapshot can expose high-
the way of a too permeating police surveillance.” ly sensitive information—think a visit to
The Court also recognized the necessity of apply- “the psychiatrist, the plastic surgeon, the
ing the Fourth Amendment to systems of abortion clinic, the AIDS treatment cen-
advanced technology, expressing concern that ter, the strip club, the criminal defense

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