Page 36 - TPA Journal November December 2024

attorney, the by-the-hour-motel, the Microsoft, and Apple with highly sensitive infor-
union meeting, the mosque, synagogue mation, the notion that users voluntarily relinquish
or church, [or] the gay bar,” or a location their right to privacy and “assume[] the risk” of
other than home during a COVID-19 this information being divulged to law enforce-
shelter-in-place order. ment is dubious. Again, with great respect, we are
Plus, such location tracking can easily follow an not convinced.
individual into areas normally considered some of As anyone with a smartphone can attest, electron-
the most private and intimate, particularly resi- ic opt-in processes are hardly informed and, in
dences. As another commentator described: many instances, may not even be voluntary.
Google’s Location History opt-in process is no
Even a geofence warrant that limits itself different. As described above, users are bombard-
to a single day could follow a person ed multiple times with requests to opt in across
from the interior of their home, among multiple apps.
the rooms of their dwelling, to the loca- These requests typically innocuously promise app
tion of a crime, then to a place of wor- optimization, rather than reveal the fact that user-
ship, then perhaps to a new home, such as s’ locations will be comprehensively stored in a
that of a relative or friend, and among the “Sensorvault,” providing Google the means to
rooms of that second dwelling. access this data and share it with the government.
Even Google’s own employees have indicated that
In short, geofence location data is invasive for deactivating Location History data based on
Fourth Amendment purposes. Of particular con- Google’s “limited and partially hidden” warnings
cern is the fact that a geofence will retroactively is “difficult enough that people won’t figure it
track anyone with Location History enabled, out.”
regardless of whether a particular individual is But you don’t have to take our word for it—others
suspicious or moving within an area that is typi- have similarly questioned the “voluntary” nature
cally granted Fourth Amendment protection. of Google’s opt-in process.
Moreover, Carpenter’s application to the third- Not to mention, the fact that approximately 592
party doctrine in this case is straightforward. As million people have “opted in” to comprehensive
the Court in Carpenter explained, while cell tracking of their locations itself calls into question
phone data is held by private corporations, on a the “voluntary” nature of this process. In short, “a
practical level, it is unreasonable to think of cell user simply cannot forfeit the protections of the
phone users as voluntarily assuming the risk of Fourth Amendment for years of precise location
turning over comprehensive dossiers of their information by selecting ‘YES, I’M IN’ at mid-
physical movements to third parties. In a way, night while setting up Google Assistant, even if
Carpenter acknowledged that, at least in some some text offered warning along the way.”
instances, the third-party doctrine is “ill suited to To conclude, we hold that law enforcement in this
the digital age, in which people reveal a great deal case did conduct a search when it sought Location
of information about themselves to third parties in History data from Google. Given the intrusiveness
the course of carrying out mundane tasks.” Given and ubiquity of Location History data, Smith and
the ubiquity—and necessity—in the digital age of McThunel correctly contend that they have a “rea-
entrusting corporations like Google, Microsoft, sonable expectation of privacy” in their respective
and Apple with highly sensitive information, the data. Additionally, per Carpenter, the third-party
notion that users voluntarily relinquish their right doctrine does not apply.
to privacy and “assume[] the risk” of this informa- Having concluded that the acquisition of Location
tion being divulged to law enforcement is dubious. History data via a geofence is a search, it follows
Given the ubiquity—and necessity—in the digital that the government must generally obtain a war-
age of entrusting corporations like Google, rant supported by probable cause and particularity

Nov.-Dec. 2024 www.texaspoliceassociation.com • (512) 458-3140 35