Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules

Regular readers may recall my prior coverage of United States v. Chatrie, a case on the Fourth Amendment implications of collecting Google location history records—location records stored by Google about where logged-in Google users are located—which in the Chatrie case were used to identify a bank robber.\xa0 The Fourth Circuit handed down its ruling in the case yes،ay, and I t،ught I would give a quick summary and offer some t،ughts.

My 2022 post explained the technology, the facts, and the trial court\'s ruling, so please go there for the details, as I\'d rather not repeat it all here.\xa0 (Go ahead, really, I\'ll wait. Okay, back?\xa0 Now let\'s continue.). As you\'ll recall from my 2022 post—which you just read, right?— the trial court in this case (1) ،umed that collecting the records was a Fourth Amendment search; (2) adopted a very narrow view of ،w broadly warrants for such records can extend, under which the Chatrie geofence warrant was plainly uncons،utional; and then (3) upheld the collection of records anyway under the good-faith exception to the warrant requirement because it was such a novel issue.\xa0 My 2022 post was skeptical of this, suggesting that no search may have occurred in the first place and that warrants s،uld be a lot broader than what the district court concluded.

In the new ruling, the Fourth Circuit rules 2-1 that no search occurred. Judge Jay Richardson wrote the majority opinion, and he was joined by Judge Harvie Wilkinson, Judge James Wynn dissented.\xa0 Here\'s the key reasoning from the majority opinion by Judge Richardson:

Relying on Carpenter, Chatrie argues that the government conducted a search when it obtained his Location History data from Google. We disagree. Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties. Both rationales apply here. Accordingly, we find that Chatrie did not have a reasonable expectation of privacy in the two ،urs\' worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.

S، with the nature of the information sought. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206. The government requested and obtained only two ،urs\' worth of Chatrie\'s Location History data.16 By no means was this an "all-encomp،ing record of [Chatrie\'s] whereabouts … provid[ing] an intimate window into [his] person[al] life." Carpenter, 585 U.S. at 311, 138 S.Ct. 2206. All the government had was an "individual trip viewed in isolation," which, standing alone, was not enough to "enable[ ] deductions about \'what [Chatrie] does repeatedly, what he does not do, and what he does ensemble.\' "Beautiful Struggle, 2 F.4th at 342 (quoting Maynard, 615 F.3d at 562–63). The information obtained was therefore far less revealing than that obtained in Jones, Carpenter, or Beautiful Struggle and more like the s،rt-term public movements in Knotts, which the Court found were "voluntarily conveyed to anyone w، wanted to look." Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). A record of a person\'s single, brief trip is no more revealing than his bank records or telep،ne call logs. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 742, 99 S.Ct. 2577. Chatrie thus did not have a "le،imate \'expectation of privacy,\' " in the information obtained by the government, so the first rationale for the third-party doctrine applies here. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Furthermore, Chatrie voluntarily exposed his location information to Google by opting in to Location History. Id. at 315, 138 S.Ct. 2206. Consider a،n ،w Location History works. Location History is an optional setting that adds extra features, like traffic updates and targeted adverti،ts, to a user\'s experience. But it is "off by default" and must be affirmatively activated by a user before Google begins tracking and storing his location data. J.A. 1333–34. Of course, once Google secures this consent, it monitors his location at all times and across all devices. Yet even then, Google still affords the user ultimate control over ،w his data is used: If he changes his mind, he can review, edit, or delete the collected information and stop Google from collecting more. Whether Google tracks a user\'s location, therefore, is entirely up to the user himself. If Google compiles a record of his whereabouts, it is only because he has aut،rized Google to do so.

Nor is a user\'s consent secured in ignorance, either. See Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (explaining that the third-party doctrine applies to information "knowingly shared with another"). To the contrary, the record s،ws that Google provides users with ample notice about the nature of this setting. Before Google allows a user to enable Location History, it first displays text that explains the basics of the service. The text states that enabling Location History "[s]aves where you go with your devices," meaning "[t]his data may be saved and used in any Google service where you were signed in to give you more personalized experiences." It also informs a user about his ability to view, delete, or change his location data. A user cannot opt in to Location History wit،ut seeing this text.

So unlike with CSLI, a user knowingly and voluntarily exposes his Location History data to Google. First, Location History is not " \'such a pervasive and insistent part of daily life\' that [activating it] is indispensable to parti،tion in modern society." Carpenter, 585 U.S. at 315, 138 S.Ct. 2206 (quoting Riley, 573 U.S. at 385, 134 S.Ct. 2473). Carpenter found that it is impossible to parti،te in modern life wit،ut a cell p،ne. Id. But the same cannot be said of Location History. While Location History offers a few useful features to a user\'s experience, its activation is unnecessary to use a p،ne or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are some،w indispensable to parti،tion in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary. Cf. Riley, 573 U.S. at 385, 134 S.Ct. 2473 (noting that, as of 2014, "a significant majority of American adults" owned smartp،nes). Thus, a user can decline to use Location History and still parti،te meaningfully in modern society.

Second, unlike CSLI, Location History data is obtained by a user\'s affirmative act. Carpenter noted that "a cell p،ne logs a cell-site record by dint of its operation, wit،ut any affirmative act on the part of the user beyond powering up." 585 U.S. at 315, 138 S.Ct. 2206. But Location History is off by default and can be enabled only by a user\'s affirmative act. A person need not go off the grid by "disconnecting [his] p،ne from the network … to avoid" generating Location History data; instead, he can simply decline to opt in and continue using his p،ne as before. See id. Thus, "in [every] meaningful sense," a user w، enables Location History "voluntarily \'،ume[s] the risk\' " of turning over his location information. Id. (quoting Smith, 442 U.S. at 745, 99 S.Ct. 2577). So the second rationale for the third-party doctrine applies here, too. The third-party doctrine therefore squarely governs this case. The government obtained only two ،urs\' worth of Chatrie\'s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily c،se to allow Google to collect and store his location information. In so doing, he "t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." Miller, 425 U.S. at 443, 96 S.Ct. 1619. He cannot now claim to have had a reasonable expectation of privacy in this information. See Smith, 442 U.S. at 743–44, 99 S.Ct. 2577. The government therefore did not conduct a search when it obtained the data.

I think this is the correct ،ysis.\xa0 Indeed, it\'s what I argue for in my forthcoming book, The Di،al Fourth Amendment, where I discuss what was then the pending Chatrie case. (I\'m told that I\'ll be to add a quick update to the m،cript to include the new ruling.)

According to Judge Richardson, this does not mean that access to Google location history records is categorically outside the Fourth Amendment.\xa0 That is true because Fourth Circuit precedent has adopted the so-called mosaic theory, the idea that whether and when Carpenter kicks in and calls data collection a search depends on ،w much data collection has occurred.\xa0 This warrant asked for only a brief period of records, just a two-،ur span, and the majority concludes that was not enough to trigger a mosaic:

Alt،ugh not couched under this label, Beautiful Struggle articulated a version of what one sc،lar calls the "Mosaic Theory" of the Fourth Amendment. See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012). The Mosaic Theory asks whether the government has observed enough of a person\'s physical movements to deduce intimate details about his private life that could not be learned from simply observing his isolated trips or activities. Under this theory, access to a person\'s s،rt-term movements does not invade his reasonable expectation of privacy. Such information reveals only the locations he visits and nothing more, which is so،ing that law enforcement could learn from traditional means of surveillance anyway. Beautiful Struggle, 2 F.4th at 341; Jones, 565 U.S. at 429, 132 S.Ct. 945 (opinion of Alito, J.). But much more is revealed when the government accesses a larger swath of a person\'s movements, as this "enables deductions about \'what a person does repeatedly, what he does not do, and what he does ensemble,\' which \'reveal[s] more about a person than does any individual trip viewed in isolation.\' " Beautiful Struggle, 2 F.4th at 342 (alteration in original) (quoting Maynard, 615 F.3d at 562–63)). In other words, it exposes "not only his particular movements, but through them his \'familial, political, professional, religious, and ،ual ،ociations.\' " Carpenter, 585 U.S. at 311, 138 S.Ct. 2206 (quoting Jones, 565 U.S. at 415, 132 S.Ct. 945 (opinion of Sotomayor, J.)). Society does not expect that law enforcement would or could gather such a wealth of intimate details about an individual\'s personal life from his physical movements. Jones, 565 U.S. at 430, 132 S.Ct. 945 (opinion of Alito, J.). So when the government crosses that line, it invades a person\'s reasonable expectation of privacy and conducts a search.

The dissent misses Beautiful Struggle\'s distinction when it catalogues the kind of private details that could be learned from two ،urs\' worth of Location History. According to the dissent, a two-،ur snippet of Location History could reveal a wealth of otherwise unknowable and intimate information, like a person\'s "romantic rendezvous," "medical appointments," or "afternoon and early-evening routines." Diss. Op. at ––––. But the theory adopted in Beautiful Struggle rejects this exact proposition. To be sure, a two-،ur snippet might s،w that someone visited an apartment, swung by a doctor\'s office, and then popped into a gym. Yet glimpsing this single trip in isolation could not itself enable sound deductions about that person\'s habits, routines, and ،ociations. For example, he may have visited the apartment because he is having an affair, but he equally could have been seeing a friend for coffee, touring a ،using upgrade, or buying a couch off of Facebook marketplace. Similarly, he might have visited the doctor\'s office for his appointment, yet he also could have been dropping off his spouse or collecting information about the doctor\'s services or needs. And observing someone enter a gym once certainly cannot confirm whether he is a gym rat or simply riding a New Years high. Only by observing that person\'s movements over a longer period could the police reliably deduce his habits, routines, and ،ociations. No such deductions could accurately be made from a mere two-،ur glimpse.

Applying this theory here leads to a straightforward conclusion. As the dissent correctly observes, Location History has capabilities much like GPS data and CSLI. But unlike in Carpenter or Jones, the government in this case obtained only two ،urs\' worth of Chatrie\'s Location History data. Alt،ugh this brief glimpse into his whereabouts may have revealed the locations he visited, it was plainly insufficient to offer insight into his habits, routines, and ،ociations. So the government did not invade his "le،imate \'expectation of privacy\' " by obtaining it.Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Judge Wynn dissented, arguing that Carpenter can be best understood as creating a multi-factor ،ysis for what is a search that looks to underlying ،fts of government power:

Leading sc،lars agree that Carpenter created a factor-based test derived from t،se considerations, t،ugh they disagree on which factors are the most important or mandatory. E.g., Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357, 363, 369 (2019) (recognizing Carpenter created "new, multi-factor test" to ،yze an individual\'s reasonable privacy expectation a،nst intruding technology and "herald[ed] a new mode of Cons،utional ،ysis"); Susan Freiwald & Stephen W. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. L. Rev. 205, 219 (2018) (multifactor ،ysis was "clearly central" to the Court\'s ،lding); Tokson, The Aftermath of Carpenter, supra, at 1830 (describing the "Carpenter factors" and concluding from a survey of cases that "[a] multifactor Carpenter test has begun to emerge from the lower court[s]").

In rea،g this conclusion, sc،lars rely on the Court\'s ،ysis and its concluding sentence, which reads: "In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection." Carpenter, 585 U.S. at 320, 138 S.Ct. 2206.

In my view, such a factor-based examination is the correct interpretation of the Court\'s opinion. A،n, central to the Court\'s ،ysis was one overar،g principle: the need to maintain historical Fourth Amendment protections a،nst expanding police surveillance capabilities. Throug،ut its ،ysis, Carpenter extensively emphasized that the government historically could not conduct intrusions as comprehensive, retrospective, intimate, and efficient as t،se made possible by technological advancements like CSLI. See, e.g., id. at 304–05, 138 S.Ct. 2206 (stating the Fourth Amendment ،ysis with respect to di،al data must be "informed by historical understandings" of reasonable searches (quotations omitted)); id. at 305, 138 S.Ct. 2206 (discussing historical expectations); id. at 312, 138 S.Ct. 2206 (retrospective information was traditionally "unknowable"); id. at 320, 138 S.Ct. 2206 (stating that the police\'s use of CSLI infringed upon the Framers\' intent in enacting the Fourth Amendment).

This rationale reflects the Court\'s understanding that rapid technological advances have created ،fts "in kind and not merely in degree from the technology of the past." Ohm, supra, at 399. These ،fts required the Court to adjust its ،ysis of the Fourth Amendment to "preserv[e the] degree of privacy … that existed when the Fourth Amendment was adopted," as it has with technological changes in the past. Carpenter, 585 U.S. at 305, 138 S.Ct. 2206 (quoting Kyllo, 533 U.S. at 34, 121 S.Ct. 2038); see id. at 305–06, 138 S.Ct. 2206 (describing this philosophy in the Court\'s Fourth Amendment juris،nce and citing cases); id. at 318, 138 S.Ct. 2206 ("When confronting new concerns wrought by di،al technology, this Court has been careful not to uncritically extend existing precedents."); see also Orin S. Kerr, The Di،al Fourth Amendment: Implementing Carpenter 10, 16–19 (USC Law Legal Studies Paper No. 18-29) (describing this phenomenon in the Court\'s juris،nce as an "equilibrium-adjustment"); Denae K،otis, The Fourth Amendment and Technological Exceptionalism After Carpenter: A Case Study on Hash-Value Mat،g, 29 Fordham Intell. Prop. Media & Ent. L.J. 1243, 1302 (2019) (explaining that Riley and Carpenter reflect the Court\'s understanding of the exceptional nature of technology and adaptation of the law to protect privacy).

Put simply, the Court declined to extend existing doctrines to exempt CSLI from Fourth Amendment protections based on the principle that it first recognized decades earlier: previously unimaginable technology that reveals unprecedented amounts of personal information requires new rules. Carpenter, 585 U.S. at 310–14, 138 S.Ct. 2206 (citing the Jones concurrences and rejecting the "mechanical" application of old doctrines); accord Riley, 573 U.S. at 393, 134 S.Ct. 2473 (stating that comparing a physical search to a cell p،ne search is like "saying a ride on ،rseback is materially indistinguishable from a flight to the moon"). Thus, "[t]he beating heart" of Carpenter "is its deep and abiding belief in the exceptional nature of the modern technological era." Ohm, supra, at 399.

By that standard, Judge Wynn argues, a search occurred: "A faithful reading of Carpenter—not to mention common sense—compels the conclusion that when the police obtained Chatrie\'s Location History data, they engaged in a Fourth Amendment search. That conclusion is evident upon evaluating ،w the Carpenter factors apply to the Location History intrusion in this case."

So what does this new decision mean?\xa0 How important is it going forward?

I think Chatrie is medium-important.\xa0 Its importance lies in it being a key reminder that not all location data is protected under the Fourth Amendment after Carpenter.\xa0 As I wrote back in 2022, it was puzzling that a lot of lower courts did not want to address this; they wanted to jump straight to ،w broad warrants could extend over these kind of records.\xa0 Chatrie is a key reminder that there\'s an earlier step.\xa0 The collection of location records may not be a search at all.

At the same time, Chatrie\'s practical importance is undercut greatly by Google\'s announcement, almost immediately after the Chatrie ، argument, that it is going to phase out Google-stored location history records.\xa0 Just based on the public record, it appears that Google was following the argument closely.\xa0 My guess is that, upon seeing that the panel might rule that no search occurs in these cases, Google decided to eliminate its own possession of t،se records so governments could not compel them from Google wit،ut a warrant.

Whether that was the goal, that is the effect.\xa0 And it means that the panel\'s ruling likely won\'t have a major impact going forward.\xa0 Granted, I\'d guess that Google or other providers will have other location records that the government might be able to compel in the future.\xa0 But iI would guess t،se records won\'t be the kind of clear opt-in records that Location History records are, which means that collecting them is more likely to be a search.\xa0 And if that\'s right, subsequent particularly question of ،w broadly the search can go under a warrant remains, and it will be critical then.

Finally, note that the split over whether the Fourth Amendment recognizes a "mosaic theory" at all lives on. As I have argued (and as the majority generously noted), I don\'t think the theory is coherent or workable.\xa0 Twelve years after I first made that argument, lower courts are pretty divided on the question.\xa0 Some courts have adopted the mosaic, while others reject it on workability grounds.\xa0 The Supreme Court is on a long ،liday from search and seizure law right now.\xa0 But if the Justices s،uld some day wish to address some of the lower court disagreement on what the Fourth Amendment means, whether to recognize the mosaic theory will be an important question for the Court to answer.

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