privacy

WASHINGTON  — A divided Supreme Court heard arguments Monday on whether the police use of phone tracking data violates the Constitution’s protection against “unreasonable searches.”

Most of the justices sounded wary of barring investigators from obtaining precise location history from Google or cellphone providers if it helps find a murderer or a bank robber.

“I’m trying to figure out why this was bad police work,” Justice Brett M. Kavanaugh told an attorney representing the defendant, Odell Chatrie.

He said a police detective in Virginia was seeking clues to find a bank robber and sought a “geofence warrant” from a judge that told Google to turn over data from phones that were near the bank during the hour of the robbery.

“In the end, he got three names,” Kavanaugh said, including Chatrie, who pleaded guilty. He said these searches have proved to be practical for finding criminals.

But other justices said the court should not rule broadly to endorse digital searches of vast data bases held by private companies.

What about emails or Google photos, asked Justices Sonia Sotomayor, Neil M. Gorsuch and Amy Coney Barrett.

All three said this information deserves more privacy protection than location data.

In the past, the court has said the 4th Amendment protects against government searches that intrude upon a “reasonable expectation of privacy.” The two sides in this case differ on whether a digital search of location data violates privacy rights.

Gorsuch said he was generally skeptical of broad searches if the government had no particular suspect.

Is it OK to search “all the rooms in a hotel for a gun or all the storage units or all bank deposit boxes for the pearl necklace that has been stolen?” he asked.

Eric Feigin, a deputy solicitor general, said the government probably could not obtain a search warrant for all storage units or hotel rooms, but a Google search is different because it is a software filter.

Chief Justice John G. Roberts Jr. proposed a narrow ruling.

Perhaps unwittingly, Chatrie had agreed to have Google store his location history data. Roberts said he could have turned off the public location data, and for that reason, he may have lost his right to appeal.

“If you don’t want the government to have your location history, you just flip that off,” he said.

Justice Samuel A. Alito Jr. agreed. Chatrie “voluntarily disclosed to Google the information about where he was going to be,” he said.

Eight years ago, Roberts wrote an opinion for a 5-4 majority that said investigators needed a search warrant before they could obtain 127 days of cell tower records that helped convict a Michigan man of several store robberies.

Four of the court’s liberal justices joined that majority, but only two of them — Sotomayor and Elena Kagan — remain on the court.

Since then, Kavanaugh, Barrett and Justice Ketanji Brown Jackson have joined the court.

The National Assn. of Criminal Defense Lawyers and other civil liberties groups backed Chatrie’s challenge to the government’s use of geofence warrants.

Chatrie had “a reasonable expectation of privacy in his location history given both its sensitive and revealing nature and the fact that it was stored in his password-protected account,” Washington attorney Adam Unikowski told the court. “There was not probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime.”

Feigin, the Justice Department attorney, said a ruling for Chatrie “would impede the investigation of kidnappings, robberies, shootings and other crimes.”

He agreed, however, that email should be protected because it involves personal communication.

The justices will hand down a ruling in Chatrie vs. U.S. by the end of June.

The measure has long been criticised for allowing US intelligence agencies to collect citizen data without a warrant.

The United States Congress has temporarily extended a controversial surveillance law which allows federal intelligence agencies to collect the data of foreigners, including their contacts with US citizens.

The move allows a provision of the Foreign Intelligence Surveillance Act (FISA) to continue until April 30. The short-term extension was passed by the House of Representatives and approved by the Senate on Friday.

The patch comes after President Donald Trump’s efforts to secure a more lasting extension broke down.

Section 702 of FISA allows the National Security Agency (NSA) and other intelligence services to collect data from foreigners outside of the country.

That could include their interactions with US citizens, a prospect that has alarmed rights advocates.

Collecting such data, which can include correspondence on email and telecommunications platforms, typically requires a warrant approved by a court.

The process has been described by critics as a “backdoor search” that circumvents existing privacy laws.

Speaking after Friday’s vote, Senate Majority Leader John Thune said there was still some openness to reforming the law.

“We’ve got to pivot and figure out what can pass, and we’re in the process ⁠of figuring out how to do that here,” he told reporters.

Supporters of reform, who stretch across party lines, have long sought to repeal or amend Section 702.

While FISA was initially passed in 1978, Section 702 was added as an amendment in 2008.

The addition came amid the US’s “global war on terror”. But during its approval, revelations emerged that the administration of former US President George W Bush had already used the tactics Section 702 legalised.

Supporters, including Trump, maintain that reforming the provision would lead to a lapse in national security.

“I have spoken with many in our Military who say FISA is necessary in order to protect our Troops overseas, as well as our people here at home, from the threat of Foreign Terror Attacks,” Trump wrote in a Truth Social post on Wednesday.

He has pushed for the law to be extended for 18 months without changes. That effort initially appeared on track in the House but was ultimately scuttled by pushback from within Trump’s own Republican Party.

Among the detractors was Republican Congressman Thomas Massie, who has been a regular critic of Trump.

“I will be voting NO on final passage of the FISA 702 Reauthorization Bill if it does not include a warrant provision and other reforms to protect US citizens’ right to privacy,” he wrote ahead of the House vote.

A Los Angeles jury has found Alphabet’s Google and Meta liable for $6 million in damages in a landmark social media addiction lawsuit. The case involved a 20-year-old woman who said she became addicted to the apps at a young age due to their platform design. Meta says it plans to appeal the decision.