Do You Know How Your Phone Works?

What Trump Can Teach Us About Con Law

This episode explores how modern technology, particularly GPS tracking and location data from smartphones, intersects with constitutional law—s

Key takeaways

• The Supreme Court's decision on geofence warrants hinges on whether individuals have a reasonable expectation of privacy in their location data, even when voluntarily shared with tech companies.
• Location history data stored by Google in SensorVault is not inherently public; it remains private unless accessed through legal means like warrants.

Main topics

• Fourth Amendment rights
• Reasonable expectation of privacy

Notable quotes

"A search occurs when the government intrudes upon what's called a reasonable expectation of privacy."

Conclusion

The episode underscores how constitutional principles must evolve alongside technological

Transcript preview

Speaker 2 (0:00) It is Tuesday, August 25th at 1 o'clock p.m. as we record this. What are we going to be talking about today? Speaker 1 (0:06) Roman, let's talk about lobsters. Okay. All right. So Maine is the largest lobster-catching state in the country, and the industry is subject to joint state and federal oversight. So the Federal Atlantic States Marine Fisheries Commission, that's quite a mouthful, comes up with a fishery management plan to make sure that there's a balance between conservation and commercial fishing. Now, the state of Maine's Department of Marine Resources comes up with a set of regulations to implement the federal management plan. That's how there's a state and federal partnership. And in 2022... A new addition to the American lobster fishery plan required all lobster boats to install GPS tracking devices that would track boats' locations at all times, even when boats weren't being used for catching lobster. Now, Frank Thompson, who's a fifth-generation lobsterman, and four others sued the state in federal court. They argued that the government's required installation of a 24-7 tracking device on their boats violated their constitutional rights, specifically the Fourth Amendment's right to be free of unreasonable searches. Speaker 2 (1:22) The Speaker 1 (1:23) Federal Appeals Court did not accept Thompson's argument that he was being subjected to what he called Orwellian nonstop government surveillance. But in June, the United States Supreme Court decided a case that might give the lobstermen one more opportunity to make his case. All because of how the police successfully identified the person responsible for the robbery of a credit union in 2019. What does a case about the robbery of a credit union have to do with a lobsterman? Potentially quite a lot. Time to find out. Speaker 2 (1:54) Let's do it. Speaker 2 (2:14) This is What Trump Can Teach Us About Con Law, an ongoing series of indeterminate length and sporadic release where we look at lobsters, bank robberies, and what we really understand about our cell phones and use them to examine our Constitution like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo. And I'm your fellow student and host, Roman Mars. Speaker 1 (2:45) So, Raman, I wanted to talk about a case from the court's last term that didn't really receive anything like the attention that was given to cases like the birthright citizenship case or Trump's firing of the FTC commissioner, Rebecca Slaughter, or state bans on transgender athletes. It kind of went under the radar. Speaker 2 (3:03) So Speaker 1 (3:04) we're going to talk about a case called Chaudhry. And for that, we need a very brief review of the Fourth Amendment. Ready? Speaker 2 (3:10) Okay, let's do it. Speaker 1 (3:11) Okay, so the Fourth Amendment of the Constitution tells us that the government cannot conduct what the Constitution says are unreasonable searches and seizures. In fact, let me read the amendment because it's so short, right? The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Okay? Speaker 2 (3:45) So Speaker 1 (3:45) the next question you might want to know is, well, since I said what's important is the unreasonable search or seizure issue. Well, what is an unreasonable search or seizure, right? Well, if you have a couple of weeks or a couple of months, I could tell you, because there are literally thousands of pages of judicial decisions and academic writing devoted to that question. You can take a whole course on it, actually. Actually, you probably need two courses on it, right? So for now, let me just give you the basics that you need to understand in order to understand the Chhatri decision from last term, okay? So first of all, what is a search, right? Well, when the government obtains information from you, whether it's in a criminal investigation or really for any reason, whether it has to follow what the Fourth Amendment requires depends on whether the government's actions qualify as what the Supreme Court would consider a search under the Fourth Amendment. So that's a very specific legal definition. It's not like our common sense idea of what a search is, right? So the Supreme Court has issued a lot of opinions that try to define what that means. But for our purposes today, we can settle on a definition from an important case from 1967 called Katz versus the United States. And in that case, the Supreme Court decided that a search occurs when the government intrudes upon what's called a reasonable expectation of privacy. That's the test. It's a pretty important standard. OK. Speaker 2 (5:10) Yeah. Speaker 1 (5:10) All right. So second important part of the background. The Fourth Amendment has a presumption that the government, when it is engaged in a search, is supposed to get a warrant. Think of that as like judicial authorization when it wants to collect that information. And a warrant is supposed to have probable cause. That's the standard that the government has to use in order to justify why it wants to engage in a search. Speaker 2 (5:31) OK. Speaker 1 (5:32) So that's the basic vocabulary. Reasonable expectation of privacy, probable cause, and warrants, right? I Speaker 2 (5:39) think it's funny that... The definition of unreasonable uses the word reasonable inside of it. You know what I mean? Like it's defined like reasonableness is a strange thing that we sort of come to a lot in the Constitution and our laws. Right. Speaker 1 (5:51) And it doesn't come with any definition either. So we're sort of left to think like, well, it seems unreasonable to me. Unfortunately, it's not left to any of us individually. Right. OK, so now the Chautry case involves the government's use of a geofence warrant. Speaker 2 (6:07) So what is a geofence warrant? Speaker 1 (6:09) Okay. Well, in a normal warrant, like the run-of-the-mill warrant situation, the government is saying something like, you know, let's say we want to search this person's home in order to find out whether or not there's evidence there in this investigation we're conducting. If that's the normal warrant, a geofence warrant goes in reverse. With a geofence warrant, the government says, well, all we know is that a crime happened in this place around this time. And that's all we know. And that's where Google actually comes in. Because, yeah, almost everyone has a cell phone, right? And a huge percentage of people use Google in some way, whether you're using it as a search engine or you're using Google Maps or Google Calendar. Unfortunately, it's sort of captured by this giant tech monopoly, right? Now, the important feature for this case is... Google's location history, which was introduced in 2019. And it helps you, the user, see where you've been. I'm going to get into some nitty gritty here, the details, but they're important for us to understand what the Supreme Court was talking about. So location history is something that you turn on as a user, right? So as soon as you set up a Google account on your phone, Google would prompt you to turn it on and would keep prompting you as you move through the different apps that Google provides to users, like Google Maps, photos, assistance, everything, right? And then once the user turns location history on, it's just on for your device, period. Speaker 2 (7:41) I mean, I tend to not turn those things on or turn them off. But so what is the benefit of that? Speaker 1 (7:46) Well, as a user, you kind of get like a little record of your life. So if you're curious, like, well, where was that restaurant where I had dinner with my friends two weeks ago? I can't remember where it is or what it was called. Speaker 2 (7:58) Or Speaker 1 (7:59) what was the last time I was at my best friend's house? Well, location history as a feature can bring that up for you. So it's basically a timeline of everywhere you've been since almost everyone carries their cell phone with them everywhere they go. That's why it's useful to the user. And location history is also incredibly useful for Google. It drives the company's multi-billion dollar advertising business, right? So location helps tailor the ads that users see. So I'm sure everyone's had this phenomenon where they're like, that's weird. Why am I seeing this very specific ad when I've just driven by the store? You know, it's that sort of feature. Like it helps tailor the ads that you'll see with your phone. When Google established location history, it made the choice to store all of that location history, and that's millions of users, Speaker 2 (8:50) in Speaker 1 (8:51) a set of company servers called SensorVault. Of course, it has this really strange, creepy name. Speaker 2 (8:58) And Speaker 1 (8:58) SensorVault isn't a pool of everybody's data mixed together. It's more like a set of millions of storage lockers or file cabinets, one for each user. So that's really important. Okay. Yeah. Okay. And because everybody has a cell phone and let's face it, everybody uses some kind of Google related app on their phones, right? Most people do anyway. Location history, if it's turned on, is a very attractive source of information. to the government when it's investigating crimes. And that's, you know, keep in mind, that's not why Google set it up, but it just so happens that because there's so much location information, it's really helpful when you're trying to figure out who committed a particular offense. Yeah, sure. Speaker 2 (9:40) So Speaker 1 (9:41) remember with the geofence warrant, the government has no suspect at all. It's just they know that there's a crime that occurred. They know where it occurred. They know about when it occurred within some window of time. Speaker 2 (9:52) So Speaker 1 (9:52) with the geofence warrant, what the government is doing is it asks Google, right? They say to Google, tell us which cell phones were in that place and at that time. Speaker 2 (10:02) So Speaker 1 (10:02) some people call this a reverse warrant, actually, because it doesn't work like traditional or conventional warrants. We don't actually know who we're looking for. We're just thinking that there's going to be one or more cell phones that might help us figure out who committed the crime at that time and place. Now, Roman, you and I have actually talked about geofence warrants before, a couple of years ago, and that was related to the January 6th attack on the Capitol. So remember, on that day, hundreds of people were involved in violently attacking the Capitol on the day that the House and the Senate were supposed to officially count and certify the electoral college win for Biden for the 2020 election. And of course, the rioters didn't succeed exactly. They didn't shut down the certification, but they did delay it for hours. They fought with police. They seriously injured dozens of people. But remember that most of these rioters, and keep in mind, they're all breaking the law because at a minimum, they're not supposed to be there on that day. Speaker 2 (10:58) They Speaker 1 (10:58) left, right? Most of them were not arrested that day. One technique that the government used to identify the rioters was through geofence warrants. We don't know that because the federal government announced that they were doing so. We just had some really enterprising journalists who kind of combed through the court filings and said, this kind of seems like a geofence warrant. So, for instance, some filings said something like, we obtained records through a search warrant served on Google. Now, assuming that that was correct, and I think it's pretty clear that it was, the method the government used was, remember, everybody there on the day of the... attack was either supposed to be there because they're, you know, they're a senator or a house representative or their staff or security and everybody else wasn't supposed to be there. So it was pretty easy through process of elimination. If you identify everybody, all of the devices that are in the Capitol on January 6th, you go through a process of elimination to figure out who was not supposed to be there. Speaker 2 (11:58) Yeah. Speaker 1 (11:59) But January 6th was kind of an unusual situation. We don't usually have crimes like that, of that nature, where you can so clearly identify either you're a criminal or you're not, right? So if we backtrack from what we know now, the first geofence warrants were served on Google in 2016, but then the technique really took off. And so by 2020... Google received something like 11,000 geofence warrants. Because remember, you know, once one law enforcement agency says, hey, this is pretty useful, like everybody catches on and they start serving these warrants on Google. And that's because the sheer amount of location data. on so many users, ordinary cell phone users, it's just like a really tempting source of information. And again, that's the case, even though Google never intended that this would be a kind of law enforcement database. They were just doing it for their own advertising revenue. Speaker 2 (12:54) So did people challenge this? Like, how did this sort of shake out once they realized that this was a gigantic police database and not an advertising shoes database? Speaker 1 (13:03) Yeah, I mean, at least, so the answer is that yes, criminal defendants who realize oh, this is how I was identified, they would raise arguments saying that this is not a constitutional warrant. You didn't even know who I was. You're basically going on this giant phishing expedition because Google has generated this enormous pool of data. And Google's just kind of allowing the police to kind of go through this giant pool of data, just scooping up everybody, not just the people who might be suspected of a crime, even people who just... happened to be in the place and the time around the time of the events of any particular offense. Speaker 2 (13:39) So this was a Supreme Court case, you said? Speaker 1 (13:42) Yep. Speaker 2 (13:42) And what were the specifics of the case where they got involved? Speaker 1 (13:44) Yeah, so the case was called Chantry. And in order to understand what the court did in 2026, we need to take a step back, actually, eight years to 2018. And that is because the Supreme Court then decided a case called Carpenter versus the United States, okay? So in Carpenter, the police were investigating a group of robberies of Radio Shack stores. Speaker 2 (14:07) And Speaker 1 (14:08) in this investigation, the police identified Timothy Carpenter as a suspect. So they thought, well, he might be involved. So how could they tie him to the crimes? Well, through his cell phone. Because every time we have our cell phones, our cell phones are trying to contact the local cell tower or sometimes called cell site. Everywhere we go, you know, we wouldn't like our cell phones if they never had any connection. So these