Okello Chattry was convicted of bank robbery after police tracked him through his smartphone. But he argues that the searches violate the Fourth Amendment and that the potential abuses are “stunning.”
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WASHINGTON – Bringing a smartphone to a bank robbery wasn’t such a smart move for Okello Chattry.
The Supreme Court must now decide whether the “groundbreaking” and “previously unimaginable” method in which police tracked Chatry through his Samsung Galaxy S9 cell phone violates Fourth Amendment protections from unlawful searches.
At issue in the case is whether the government can examine vast amounts of data revealing the location of cellphones at crime scenes without knowing who is holding them. Searches like this with Google’s location data start with a haystack of hundreds of millions of phones and allow police to weed out the few that might lead to a suspect.
This tactic, known as a “reverse search” without identifying a suspect, is attractive to police whose shoe leather investigation has stalled. But civil libertarians are concerned about such a wide dragnet gathering highly personal information on hundreds, perhaps thousands, of non-criminals.
If courts uphold such digital investigations without identifying suspects, legal experts say the strategy could expand to eavesdropping using search engines, cloud storage and artificial intelligence chats.
“There’s no question that depending on how it’s written and how the decision is made, it could be a very important landmark decision,” William McGevellan, dean of the University of Minnesota School of Law, told USA TODAY.
Police track bank robbers using smartphone location information
Chatley was sentenced to nearly 12 years in prison after pleading guilty to robbing Coal Federal Credit Union at gunpoint on May 20, 2019.
Video showed Chatley walking into a bank in Midlothian, Virginia, talking on a cell phone at 4:52 p.m. Police suspect he may have been talking to an accomplice. Chatley handed the teller a note demanding money, brandished a silver and black pistol and left with $195,000.
Police interviewed witnesses, but ran out of leads after about a month. But because the cellphones were visible on surveillance video, police obtained a warrant to search Google location data for all cellphones on both sides of the robbery for 30 minutes, within a soccer field about 1.5 minutes from the bank.
Officials call such searches “geofencing.” This is to specify the boundaries to search. The data is fairly accurate and is measured every two minutes to within 3 meters based on the Global Positioning System, Bluetooth beacons, cell phone towers, and local Wi-Fi networks.
The data is also huge. Google was tracking the location of more than 500 million users at the time. During the search, 19 phones were found near the bank at the right time, but the owners remained anonymous at the time. Police asked Google for the names of the three owners of the phone, one of whom was Chattry.
After identifying Chattry, police discovered that he had recently purchased a pistol similar to the one used in the robbery. Police conducted a separate search and found nearly $100,000 in cash and a silver and black 9mm handgun at the suspect’s residence.
‘The potential for abuse is breathtaking’: Chattry
Ms Chattry pleaded guilty on the condition that she could still appeal the court’s decision authorizing the search.
Attorney General John Sauer, representing the federal government, argued that Ms. Chattry waived her expectation of privacy by sharing her location with Google.
“Individuals do not have a reasonable expectation of privacy when they make movements that anyone can see, that they choose to allow third parties to analyze for their own purposes, and that reveal little about their living patterns over a sufficiently short period of time, especially if their identities remain anonymous,” Sauer said in one filing.
He said there was no “just cause” to overturn the conviction “based on the objective integrity of the efforts of the investigating authorities.”
But Chatley argues that this kind of broad research without a specific subject in mind is exactly what the Fourth Amendment was designed to prevent.
“The technology may be new, but the constitutional issues it raises are not,” Chattry’s lawyers said in the filing. “The potential for abuse is staggering. A government could simply draw a geofence around a church, political rally, or gun store and force a search of all users’ records to find out who was there.”
Court to tackle ‘groundbreaking’ investigative tools ‘unimagined’
Courts have expressed various opinions regarding investigation methods.
U.S. District Judge Hannah Lauck of Virginia ruled that the search violated the Fourth Amendment, but that police acted in good faith so that the results could be used in court. She warned against “simply rubber stamping geofencing warrants in the future.”
“This case signals the next step in the court’s continued efforts to apply the fundamental doctrines of the Fourth Amendment to previously unimaginable investigative methods,” Lauck wrote.
4th The U.S. Circuit Court of Appeals split 7-7 on the issue, upholding Lauck’s decision. The court ruled that the warrant was not actually a search because Chattry “voluntarily released this information to Google.” Chief Justice Albert Diaz said he sided with the lower courts solely because of the goodwill of the police.
“My colleagues have very different views on the intersection of the Fourth Amendment and the innovative investigative tools at issue here,” Diaz wrote. “But judicial humility sometimes advises against making sweeping constitutional proclamations simply because you can, and this is precisely the case.”
State courts and lower federal courts have been grappling with geofencing cases for years, but this appears to be the first time the case has reached the Supreme Court. The last major Fourth Amendment case before the high court eight years ago dealt with the privacy of location data, but not during the search for a suspect, but after the suspect had been identified.
“I believe this is the first time the Supreme Court has dealt with geofencing warrants,” McGevellan said.
Google resists requests for information about large areas of San Francisco and Albuquerque
Google, which currently leaves location data on individual phones, said it had challenged more than 3,000 warrants, many of which were later withdrawn. Some of the requests could have inundated hundreds or even thousands of innocent people, the company said.
One of the warrants at issue sought the phone locations of thousands of people over two and a half days in a 2.5 square mile area of San Francisco.
In another case, the warrant sought location data for 489 acres in Albuquerque, New Mexico. The search would have captured 3,000 users, including more than 1,000 people who attended a funeral at the New Mexico Islamic Center.
In the third case, the warrant sought location data for 25 square miles over Vail and Aspen, Colorado. The raids were expected to target hundreds of homes, about 80 hotels, numerous places of worship and at least two hospitals.
“Personal documents and data stored electronically and securely on remote servers are modern ‘papers and effects’ protected by the Fourth Amendment,” the company said in its filing. “These documents are stored on servers in the ‘cloud’ but are not available to the public. These documents include emails, documents, photos, search history, and more that are privately stored by technology companies such as Google.”
Mobile phones track personal data such as visits to psychiatrists and abortion clinics
Critics of the data search, including the American Civil Liberties Union, said it would seriously violate the privacy of millions of people in the wrong place at the wrong time, regardless of crime.
Chattry said searches could reveal when people visited “psychiatrists, plastic surgeons, abortion clinics, AIDS treatment centers, strip clubs, criminal defense attorneys, hourly motels, trade union meetings, mosques, synagogues and churches, gay bars, etc.”
The ACLU said authorizing such searches would use new and powerful technology to violate privacy.
“The warrants purporting to authorize these dragnet searches are general warrants and are prohibited by the Fourth Amendment,” the ACLU said in one filing.
Cloud storage search and AI chat could be next: Law professor
Eight law professors filed arguments in the case, explaining that searches for highly personal data can go far beyond the phone.
For example, police can track suspects based on what they type into a search engine. But they will do so without knowing whether their requests for information about “Savannah Guthrie” or “Charlie Kirk” were made for nefarious reasons, mere curiosity about public figures.
Chats with artificial intelligence could provide new nuggets of information from the 700 million people who use the program every week.
Another option is to search cloud storage for billions of photos, including time and location stamps, email messages, and calendar items. A 2020 user study concluded that a significant portion of US users store sensitive information in the cloud, including 35% of office documents, 27% of passwords and login data, and 17% of financial information.
“All such uses generate an ocean of data in the form of archived conversations, irresistible data for drawing in the web of law enforcement,” the lawyers wrote. “As the court specifically considers geofence warrants in this case, it should be mindful of the potential ramifications of its opinion.”
