Ingenious? Orwellian? Or both? Supreme Court considers constitutionality of 'geofence' warrants

Law Ingenious? Orwellian? Or both? Supreme Court considers constitutionality of 'geofence' warrants April 27, 20265:00 AM ET Heard on Morning Edition Nina Totenberg Supreme Court considers constitutionality of 'geofence' warrants Listen · 6:50 6:50 Transcript Toggle more options Download Embed Embed <iframe src="https://www.npr.org/player/embed/nx-s1-5777656/nx-s1-9745967" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player"> Transcript Credit: NPR Can't see the video above? Watch it here. The Supreme Court hears arguments Monday about a relatively new law enforcement technique that allows police to tap into giant tech-firm databases to find out who was near the scene of a crime and may have been involved. Essentially the question before the high court is whether that technique is ingenious, Orwellian, or both? And, ultimately, is it constitutional? The technique is called geofencing, and it allows the government to draw a virtual fence around a geographic area where a crime was committed. After that, the government seeks a warrant, not to search a home or office, but to require a tech company to search its data to identify any of its millions of users who were within the geofence line at the time of the crime. Sponsor Message All Tech Considered Recruiters Use 'Geofencing' To Target Potential Hires Where They Live And Work The geofencing in this case relied on a Google feature called 'location history.' Every two minutes, on average, the location feature recorded where you were by using multiple information sources to pinpoint and record the location of every person with an active cell phone. In other words, if you were within the geofence, and your phone was not turned off, Google could tell quite precisely where you were at any moment of the day or night. Although Google has modified some of its geofencing policies, at the time this case began in 2019, about one-third of all Google users — some 500 million people — voluntarily opted into using the service, which also stored the users' information in Google's cloud, and could be accessed by law enforcement under a Google policy that required a warrant. "This was a little bit of an investigative lottery ticket when they had no other way of finding a suspect," says Stanford law professor Orin Kerr, who has written extensively about searches. The focal point of Monday's case is the Fourth Amendment's ban on unreasonable searches of people, their homes, papers, and effects, unless police obtain a warrant issued by a neutral magistrate, and aimed at obtaining specific evidence of a crime. Sponsor Message How to understand a constitutional amendment from the 1700s in today's world "The court has since the early 20th century grappled with the problem of what to do with advancing technology that shrinks the area of privacy that the Fourth Amendment was intended to protect," says Michael Dreeben, who has argued 109 cases in the Supreme Court, all but four on behalf of the Justice Department, and most of them involving criminal law. "One can sum up those cases by saying that when the court was asked to apply analog-era precedents to digital realities, it has uniformly favored privacy interests rather than extending precedents that allowed government searches." In numerous cases, so far, he observes, the Supreme Court "concluded that in the modern era, it was indispensable to protect privacy of locational information derived from cell phones to avoid an…

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