We will hear argument first this morning in Case 25-112, Chatrie versus United States. Mr. Unikowsky. ORAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONER
“This is a purely procedural, administrative statement announcing the case and calling counsel to argue. It contains no emotional valence, questioning, or evaluative language whatsoever.”
Mr. Chief Justice, and may it please the Court: The government conducted a search of Petitioner's location history, and the warrant that purported to authorize that search violated the Fourth Amendment. The government conducted a search. The Court should hold that people have a property interest in their data in their accounts on the cloud. Location history has the core attributes of property Petitioner had a right to exclude, to control, and to destroy. Additionally, Petitioner 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. 1 The warrant violated the Fourth Amendment -- Amendment. The warrant authorized the government to direct Google to search every single person's account to find those people who were within the geofence. That is a general warrant. Even if the search materialized only when the data was found and exposed to the police, the warrant would still be unconstitutional because 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. Finally, at step 2 and step 3, the search violated the Fourth Amendment because the warrant gave the police unlimited discretion to decide who to search while casting Google into the role of magistrate. I welcome the Court's questions.
How exactly did the warrant violate Petitioner's rights at the -- Fourth Amendment rights at step 1?
“The question asks the counsel to explain precisely how the warrant violated Fourth Amendment rights, which is primarily a clarifying question seeking to understand the foundational basis of petitioner's argument. The 'exactly' qualifier introduces mild skepticism, suggesting the Justice may be probing whether the violation is clearly established.”
So, at step 1, we understand this warrant to have --
I thought it was 1 anonymized at step 1.
“The Justice appears to be clarifying their understanding of the process, gently suggesting a discrepancy between what they understood and what counsel has stated. The phrasing 'I thought it was' indicates a mild probing or clarifying intent rather than strong skepticism or hostility.”
That's true. So, from our perspective, at step 1, we believe that there was a search of every single account, and, alternatively, at a minimum, there was a search of the accounts of all the people whose data was exposed to Google. But, either way, we view that as a search that the warrant authorized. But let me specifically answer your question about anonymity. We view the anonymity in this case as both irrelevant to the Fourth Amendment analysis and also rather illusory. So, first of all, I don't think anonymity matters because I think a search is a search even if you don't know the target of the search. Like, if you go to a bank and you break open a safety deposit box -- I'm sorry, Your Honor, did you have a question?
If you go to the bank and break open a safety deposit box, even if you don't know who owns the box, if you inspect the papers, I still think that counts as a 1 search, as well, as a practical matter, anonymity is somewhat illusory because one's movements within the geofence often functions as a kind of fingerprint. You can figure out who the person is based on a fairly small amount of movements. In this very case, our expert was able to identify three purportedly anonymous people via a close analysis of their movements as well as some public records.
If you don't want the government to have your location history, you just flip that off. You don't have to have that feature on your -- on your phone. So what's the -- what's the issue?
“The Justice is challenging the petitioner's argument by suggesting there's a simple opt-out mechanism (turning off location history), implying the privacy concern is overstated or self-inflicted. The rhetorical 'So what's the issue?' signals skepticism toward the petitioner's position rather than genuine curiosity.”
I take the point that you can flip it off, but I guess I just don't agree that one should have to flip off one's location history as well as other cloud services to avoid government surveillance. I mean, by the same token, you don't have to send email. You can flick that off as well. But that doesn't imply that you're implicitly consenting to the government searching one's email.
Well, not implicitly consenting, but the only reason the government has access to this information is because you decided to make it public to the extent it can be accessed by people any number of ways. In other words, people can use that information, not -- not simply law enforcement.
“The Justice is pushing back on the petitioner's framing by recharacterizing the consent argument — not 'implicit consent' but rather the information being made publicly available to anyone, not just law enforcement. This correction of the framing and probing of the underlying logic reflects skepticism toward the petitioner's argument, while also containing some clarifying and engagement elements as the Justice works through the reasoning.”
Just like, if you -- you -- you know, if you don't want them to peer into your window, you can close your window or the shades.
“The Justice is using an analogy (window/shades) to probe or illustrate a point about privacy expectations, suggesting intellectual engagement while also implicitly challenging the petitioner's argument that certain exposure is involuntary or uncontrollable — a classic skeptical move through analogy.”
I take the point, Your Honor, but I guess I'd respectfully disagree with that assessment for a couple of reasons. So, first of all, I think you could say the same thing about, you know, sending mail. If you don't want the government to look in your mail, you don't have to send it and give it to the Postal Service, or the same thing with a safety deposit box, but I think that, you know, one should be permitted to hand over data to a third party without assuming the government is going to look at it, especially since -- you know, it's true in this case 1 Petitioner was convicted of the crime, but geofence warrants mostly ensnare innocent people. In this case, you had 19 people within the geofence whose data was exposed, as well as two other devices whose actual identity was exposed. And, you know, Google received 9,000 of these warrants in 2019. So I don't think a, you know, innocent person should have to shut off these services as a condition of not being subject to a search.
Do the numbers make a difference? Would it matter if only 1 percent of users enabled location history?
“The Justice is posing a hypothetical to probe whether the legal argument depends on the scale of usage, suggesting intellectual curiosity about the boundaries of the rule being proposed. This is classic engagement through hypothetical variation, though there's mild skepticism implied by questioning whether the argument holds at different percentages.”
I -- I don't think it should matter. The government has made a point about the fact that only one-third did -- enabled it, but I actually don't think those matters really are significant because, if you view a person as having, you know, a property interest in the data, in other words, if you treat one's account as kind of a virtual safety deposit box, then I don't think it matters how many people have these -- these virtual safety deposit boxes. Even if it's only one, if the 1 legal relationship to the data is similar to the legal relationship between someone who sends a package whereas --
Mr. Unikowsky, it's -- it's not just a question of -- of shutting -- it's not a question of shutting it off. It's a question of turning it on. And according to the government, your client had to go through multiple steps in order to turn it on. So he voluntarily disclosed to Google the information about where he was going to be.
“The Justice is pushing back on the petitioner's argument by reframing the issue from 'shutting off' to 'turning on' location services, implying that the voluntary disclosure to Google undermines the petitioner's position. This is a skeptical challenge to the argument's logic, while also containing some intellectual engagement in exploring the implications of the government's framing.”
So if I could make two points about the voluntariness argument that the government advances. So, first of all, I actually don't think it should matter for Fourth Amendment purposes that there was voluntariness because it's quite common for people to consent to putting their data in the cloud in the sense of every time you send an email or you send a document, have a Google calendar entry, all those things, you're consenting to sending it in encrypted fashion from your phone to the cloud. But I don't think that the consent merely to have your data stored in this virtual 1 storage locker in and of itself is consent to disclose to the government.
Well, he not only -- he not only turned it on, but had he read his contract with Google, he could see that Google retained the right to turn this information over to law enforcement if it thought that that was appropriate.
“The Justice is pushing back on the petitioner's argument by emphasizing that the defendant voluntarily turned on location services and contractually agreed Google could share data with law enforcement, suggesting skepticism toward any privacy expectation claim. The rhetorical framing ('not only...but') signals the Justice is probing weaknesses in the petitioner's position.”
That is the same provision that exists for everything that you store on Google's servers, including email and documents and everything else. So it seems to me, if you're going to accept that argument, then that is really the -- the end of the Fourth Amendment for any private document you're storing with Google.
Suppose Google, you know, put that warning in red and it flashed a lot and it was totally noticeable, you know, we can give this to the government. Would that make a difference?
“The Justice is constructing a hypothetical to probe how the petitioner's argument would apply under different factual conditions — specifically whether the conspicuousness of a warning changes the legal analysis. This is classic intellectual engagement, testing the boundaries of the argument without overt skepticism or hostility.”
If there was a flashing warning saying that, you know, we reserve the right to give for any -- any reason 1 whatsoever, I think that might be more pertinent to the property theory than the privacy theory because, on the privacy theory, you know, the Court said in the Byrd case that, you know, terms of use aren't necessarily dispositive. They should look at sort of general expectations. I mean, maybe if it was, like, really flashing and saying that we are the government's partner, we give data to the government all the time, you know, maybe that would -- that would result in a different analysis based on one's reasonable expectations. Under the property theory, it might be relevant because one of our arguments here is that the terms of the bailment are that Google could possess this information but couldn't necessarily turn it over. There was a strict privacy policy so it wouldn't turn it over to advertisers.
Well, in -- in that -- that --
“This utterance is highly fragmented and incomplete, consisting only of a halting, interrupted attempt to begin a sentence. It carries no discernible emotional valence and is most likely a procedural or transitional moment, hence predominantly neutral with slight clarifying intent.”
-- privacy policy, 1 the -- the terms of service pretty much -- and I'm phrasing here -- we will respond to lawful requests from the government. I don't know whether one even needs to say such a thing, right? I mean, it's -- anybody who gets a warrant and lawful -- a lawful warrant has to comply with it, a bank, a doctor, a lawyer, a -- anybody. So it doesn't seem to me to add a great deal to the analysis. And -- and are the terms of service here materially different than they are for email and for Google documents?
“The Justice is actively probing the significance of the privacy policy/terms of service argument, suggesting it doesn't add much to the analysis since compliance with lawful warrants is universal. This reflects skepticism toward the petitioner's reliance on terms of service, combined with genuine intellectual engagement as the Justice thinks through the implications and draws comparisons to email and Google documents.”
So, as to the first point, I agree. And, actually, the U.S. Postal Service has the same provision in their terms of use: We'll comply with search warrants. But I think a search warrant is still needed there. And on the second point, no. The general language that the government will -- excuse me -- that Google will comply with search warrants and that Google will, you know, reveal aggregated information, like what's the most searched term of last year -- it turns out it's YouTube -- like that type of disclosure, 1 that applies to all data that's stored at Google, not just location history.
So -- so, if we were to rule that there was a voluntary exposure here to Google that allows the government unfettered access to it, that ruling would pertain equally to email?
“The Justice is probing the broad implications of ruling that voluntary disclosure to Google grants government unfettered access, expressing concern that such a ruling would extend to email as well. The hypothetical framing signals both skepticism about the government's position and concern about sweeping consequences for digital privacy.”
That's correct. Essentially, all of your data on the cloud, which is kind of all of your data if you use a computer, would be exposed to government searches without a warrant.
So where do you think voluntariness matters and where not? What -- what you're suggesting is really that's the wrong question here. When is it the right question and when is it the wrong question?
“The Justice is genuinely probing the boundaries of the counsel's argument about voluntariness, seeking clarification on when the concept applies versus when it doesn't. The question has elements of intellectual engagement as the Justice tests the logical framework of the argument, but it also clarifies the scope of the counsel's position.”
So I think there might be a voluntariness issue when it's very clear from the interaction that you really are consenting to the other person doing whatever they want with it, such as when you give information to someone, knowing that the someone is going to use it as a business record. 1 So I think that the -- the Miller case, for example, we're certainly not disputing the holding of Miller, and in the Miller case, the Court explained that if you put a check into the stream of commerce, okay, so you give it to a vendor, and then the vendor gives it to their bank, and then their bank gives it to your bank and it becomes their business record, you can't control it, they keep it for their purposes, you can't delete it, you have voluntarily put something into the stream of commerce and you've sort of given up control over it in the relevant sense. And so, on that fact pattern, the Court said that you have relinquished an expectation of privacy. And there's a similar holding in the Smith case. The Court said that when you give your phone number to the phone company, you know it's their record. They're putting it on your -- you know, your phone bill. They're using it for all kinds of business purposes. It's exactly like it used to be when you just talked to a telephone operator. And in that case, you're not just 1 giving someone information like you're mailing something, but you're, like, giving consent for them to treat it as theirs. And that's the fact pattern that I think the Court has said that, you know, the voluntariness of that transfer of property is sufficient to say that you've given up your reasonable expectation of privacy as well as your property interest.
Mr. Unikowsky, I'm struggling to understand why we are hearing this case other than the fact that at least four of us voted to take it. (Laughter.)
“The Justice is openly questioning the value or justifiability of granting certiorari, which carries skepticism about the case's merit, but the self-deprecating humor ('at least four of us voted to take it') and laughter soften the tone considerably, making it more of a wry, candid observation than genuine hostility. The statement also has a clarifying dimension as the Justice is genuinely puzzling through the rationale for the grant.”
Fourteen of the 15 judges on the en banc Fourth Circuit voted to affirm. Nine relied on the good-faith exception. Unless you think that we're going to say something that convinces the -- unless we're -- you -- you think we are going to say no reasonable officer could believe that this was a valid warrant or we're going to say something that will convince the judges on the Fourth Circuit to reach that conclusion, what you're asking for is an advisory opinion. That's number one. 1 This involves a Google feature that doesn't exist any longer. That's number two. It involves a warrant that is structured in a particular way. That's number three. I don't -- I mean, we are all free to -- to write law review articles on this fascinating subject, but I -- that seems to be what you're asking for, asking for basically a law review article on a subject that is largely unexplored by our precedents.
“The Justice is strongly challenging the petitioner's standing to even bring this case, pointing out multiple reasons why the Court should not hear it (advisory opinion, moot technology, narrow warrant structure). The dismissive 'law review article' characterization and numbered enumeration of flaws signals significant skepticism bordering on hostility toward the argument's viability, though it retains some procedural/neutral framing.”
So let me tick through each of those points, Your Honor. So, first of all, as to the good-faith exception, the Court did not grant certiorari on that question and so we didn't brief it, so all we'd ask for in this case is, if the Court finds a Fourth Amendment violation, to reverse and send it back to the Fourth Circuit to consider the good-faith issue in view of this Court's guidance. Now I admit it's going to be hard for us on the facts of this case to say that the officer acted maliciously or that the legal issues are obvious. I think, if there's 1 anything obvious from the briefs in this case, it's that they're not obvious. We would make a different argument. We'd say that the Leon good-faith exception applies to fact-bound challenges to probable cause determinations in a particular case and shouldn't apply where we're challenging a new and fundamentally different type of warrant. And if you look at Leon, there's -- there's some language in there that says that the exclusionary rule even in cases of warrants should be considered on a case-by-case basis, and exclusion is warranted in the unusual context where it would advance the purposes of the exclusionary rule. So we'd just like a chance to make that case in the Fourth Circuit with the benefit of the Court's guidance. In terms of the issue that Google has discontinued the Sensorvault and has put the data onto people's phones, first of all, this was fully ventilated at the certiorari stage. I don't -- I don't think that there's any surprises that are in the merits briefs in this case. 1 I think this is an important subject because lots of providers store data, not just Google. There's something like 30 amicus briefs or 29 amicus briefs in this case, including by many of the -- the titans of the tech world, and so I think a lot of people think that this case will have implications beyond these particular facts. So we'd urge the Court to decide the question on which it -- it granted certiorari.
Well, we can affirm on any ground that would support the judgment and was raised below, and the good-faith exception qualifies on all those points. So the fact that the Court did not grant certiorari on the good-faith exception does not preclude any of us from relying on that.
“The Justice is pushing back on what appears to be petitioner's argument that the good-faith exception is off the table, asserting the Court's prerogative to affirm on any supported ground. This reflects mild skepticism toward the petitioner's framing while also showing confident engagement with the legal procedural point, with a hint of approval for the good-faith exception argument itself.”
I'm not sure I agree. We would -- I mean, the Court specifically declined certiorari on that question, so we didn't brief it. And we raised in our cert petition that we'd like the chance to argue that the 1 questions are intertwined, and in view of the holding on the Fourth Amendment issue, we'd like to, you know, litigate the good-faith issue. The Court didn't grant certiorari. We didn't brief it. The government did have a section of the Respondent's brief addressing the good-faith exception, but adhering to the Court's decision not to grant certiorari, we didn't respond in the reply brief except to ask for a remand. So --
Well, that was your choice.
“The terse, dismissive phrasing 'that was your choice' signals the Justice is pushing back on an argument or complaint made by counsel, implying responsibility lies with the petitioner. The brevity and pointed nature of the statement suggests skepticism or mild hostility, as the Justice appears to be deflecting or rejecting an excuse rather than engaging substantively.”
We -- the Court did not grant certiorari. We were reluctant to brief a question on which the Court specifically declined to answer --
Well, you're an experienced advocate. You understand that we can affirm on -- on an issue that was raised below and would support the judgment.
“The Justice is reminding counsel of a basic appellate principle — that the Court can affirm on alternative grounds raised below — which signals skepticism toward counsel's implicit assumption that a particular issue is off the table. The slightly pointed reference to counsel being 'an experienced advocate' carries a mildly challenging, almost admonishing tone, suggesting the argument being made is legally naive or strategically weak.”
Look, I'm happy to argue the issue from the podium, Your Honor. I'll just say one word about it. I think that the -- that the premise 1 of Leon is that it's not necessary to apply the exclusionary rule in the case of a fact-bound challenge to a probable cause determination in a particular case because probable cause is litigated all the time outside the context of warrants, whereas, in an issue like this, a challenge to a fundamental new type of warrant, I do think litigants need an adequate incentive to litigate the constitutionality of such warrants, and the only way that'll happen is through the exclusionary rule. And there is some language in the Davis case that adverts to -- to holding that in cases where you need an adequate incentive to litigate an issue, the Court would consider applying the --
And, Mr. Unikowsky, isn't there also a pretty significant split even within the Fourth Circuit over the issue of whether or not there was a search in this context? I mean, my understanding is that the Fourth Circuit split evenly 7 to 7 on that pretty significant issue.
“The Justice is pointing out a significant internal circuit split (7-7) on a core issue, which serves both to probe the strength of petitioner's position and to highlight the unsettled nature of the legal question. The 'isn't there also' framing suggests mild skepticism about the clarity of the law below, while the informational nature of the question also carries clarifying and engagement elements.”
That is correct. It 1 was 7-7, with one judge declining to reach the issue. So, obviously, there are some important issues that go well beyond the particular facts of this case, and there's also some important issues in terms of the constitutionality of the warrant that go well beyond the facts of this case.
Counsel, I just want to button down some of your answers. The privacy policy that the person is giving consent to would affect, you said, Internet, but it would also affect Google Photos, which have to do with what photos you take and store in your device, correct?
“The phrase 'button down some of your answers' signals the Justice is seeking precise confirmation of prior statements rather than challenging them. The question is primarily clarifying in nature, verifying the scope of the privacy policy's reach, though there's mild concern about the breadth of consent implications.”
Google Documents, what documents you store?
“This is a brief, direct question seeking factual clarification about what documents Google stores, with no adversarial or evaluative tone. The Justice appears to be genuinely seeking to understand the technical or factual context of the case.”
Google Calendar, your entire calendar. If this is consent, that means the government can seek those documents for any reason, not just the commission of a crime, or no reason, correct?
“The Justice appears deeply concerned about the broad implications of finding consent in this context, highlighting that such a ruling would allow government access to comprehensive personal data (entire Google Calendar) for any reason or no reason at all. The 'correct?' at the end signals skepticism about the petitioner's position while simultaneously expressing alarm about the sweeping consequences of that legal theory.”
Correct. It would -- it would not be a search, so no search warrant 1 would be required.
So that means the government, a police officer randomly who decides, I don't like that person, let me just go look at their life to see if I can find a crime, that would be okay?
“The Justice is expressing serious concern about the potential abuse implications of the petitioner's argument, using a vivid hypothetical of a vindictive police officer conducting warrantless surveillance to highlight a troubling consequence. The rhetorical framing ('that would be okay?') signals both skepticism about the argument's limits and deep concern about civil liberties implications.”
There might be some constraints under the Stored Communications Act, but as far as the Fourth Amendment is concerned, no.
Right. But that's not at issue here?
“The Justice appears to be seeking confirmation to narrow or clarify the scope of the issue at hand, with 'Right' suggesting acknowledgment of a prior point and the follow-up question seeking to confirm what is and isn't in dispute. This is primarily a clarifying move to define the bounds of the argument.”
All right. And that wouldn't be for other things?
“The question 'And that wouldn't be for other things?' is a brief follow-up seeking to confirm or clarify the scope of a prior statement, likely verifying whether a rule or provision applies narrowly versus broadly. The phrasing 'All right' suggests acceptance of a prior point before probing further clarification.”
For some of these things, like calendar entries?
“The Justice is seeking clarification about a specific example (calendar entries), probing to understand how the rule or argument applies to concrete cases. The brief, example-focused nature suggests genuine inquiry rather than skepticism or hostility.”
So there might be a question as to whether calendar entries are protected as a statutory matter, but, again, we're here under the Fourth Amendment, and so that's --
And we can't ignore today that the district court made 1 findings that the consent here was not necessarily voluntary.
“The Justice is invoking the district court's factual finding that consent was not necessarily voluntary, signaling concern about the implications of the voluntariness issue while also expressing some skepticism toward the petitioner's position by emphasizing this adverse finding cannot be ignored.”
There are findings that at midnight, when you're saying yes, I'm in, to try to get your phone to work correctly, that may not be a consent to the government searching your phone.
And there are certainly Google documents that show that it's very hard and if not opaque to figure out how to turn these things off, correct?
“The Justice is pointing to documentary evidence suggesting Google's settings are opaque and difficult to disable, which signals skepticism toward Google's position while also reflecting concern about the implications of such opacity for users. The confirmatory 'correct?' framing suggests the Justice is pressing the point rather than genuinely seeking clarification.”
Now let's go to your -- your general warrant theory. I understood at the founding a general warrant was I have a crime and I -- a magistrate permitting you to go willy-nilly anywhere you want to anyone you want to search them. I thought that was the purpose of a general warrant, correct?
“The Justice is probing the petitioner's general warrant theory by establishing a foundational historical definition, which combines genuine clarification of the legal concept with mild skepticism about whether the petitioner's argument properly fits that definition. The phrase 'correct?' suggests the Justice is testing whether counsel agrees with this framing before challenging how their argument maps onto it.”
That's not what this does. This identifies a place, a crime, a limited time frame but a time frame. So it's not a general warrant in its historical sense. 1 Why isn't this closer to the warrants that we permitted with beepers, where we don't have a person or necessarily a place in mind, but we have a location and general things, why isn't that more consonant with Berger, Zucker, Karo, those lines of cases?
“The Justice is pushing back against the petitioner's characterization of the warrant as a 'general warrant,' asserting it has specificity (place, crime, time frame), and then drawing a comparison to beeper cases to challenge the petitioner's legal framework. This reflects skepticism toward the petitioner's argument combined with intellectual engagement through the historical and precedential comparison.”
And that didn't identify a person, but it identified a crime, a place, and the nature of the unlawful conduct that we were looking for.
“The Justice appears to be building an argument supportive of the government's position, noting that identification of a crime, place, and nature of unlawful conduct suffices even without identifying a specific person. This has an approving, constructive tone that reinforces the petitioner's likely argument about warrant particularity requirements.”
Sure. So let me say a few words as to why I think this should be considered a general warrant and then a few words about why the warrant was defective even if you disagree with me on the first few words I say. So, first of all, I think the right way to think about this search is to say, one, that Google, because it received a search warrant, was acting as the agent of the government and, two, that Google really did search every single person's virtual private safety deposit box. So, as to the first part of that, this 1 Court has said that when a third party's acting with the encouragement, endorsement, or participation of the government in executing a search warrant, that third party is --
Could I pause you there?
“This is a polite interjection to interrupt counsel and redirect the discussion. It is primarily a procedural phrase used to seek clarification or raise a point, with no strong emotional valence, though it signals the justice wants to engage with something specific that was just said.”
It wasn't Google doing it. It was a filter doing it.
“The Justice appears to be pushing back on the petitioner's framing by drawing a distinction between Google's direct actions and the automated filter's actions, suggesting skepticism about attributing the conduct directly to Google. The corrective, almost dismissive tone edges toward mild hostility but is primarily skeptical.”
I mean, the filter is not the government. It's not even Google. It's a mechanical item that sorts. So why isn't -- so how could that be a search? It seems to me that the only search would be handing it over to the government.
“The Justice is probing and challenging the petitioner's argument that filtering constitutes a 'search,' expressing doubt through rhetorical questioning and suggesting an alternative framing ('the only search would be handing it over to the government'). This reflects clear skepticism toward the petitioner's legal theory while also partly seeking to clarify where exactly the constitutional violation would lie.”
So let me say a few word --
Sure. Let me say a few words about that and then say why, even if the search is the handing over, the warrant is still defective. So, as to the first part, you're absolutely right, there's not a human being 1 sifting through 500 million people's accounts. That would take an extremely long time. At the end of the day, it was a piece of software that was going through every account, piercing, from our perspective, every virtual safety deposit box and checking inside to see whether the person was there that day. So I still think that when you're using software to search someone's phone, which is how any kind of digital search operates today, that's still a type of search because it's using a tool in order to detect information. And it's true that it's a tool, it's not the human being that's looking at it, but it's still a human effort to pierce a private area in order to find something that's there. So --
Would that mean all database searches are searches for Fourth Amendment purposes?
“The question probes the logical extension of the petitioner's argument, suggesting skepticism about the breadth of their position. It also carries concern about sweeping implications for law enforcement database searches, while partly functioning as an engagement hypothetical to test the limits of the argument.”
Absolutely not, Your Honor. That is not our position. I think this is a unique case because Google's Sensorvault really is structured like a row of virtual safety deposit boxes, individual accounts. 1 It's indexed by account, which means you have to put in your own credentials to get to your account, and that doesn't get to you anyone else's. So it's exactly like a bank with safety deposit boxes except it's in the cloud. So --
So does everything depend on how a company organizes its information?
“The question uses 'does everything depend on' phrasing, which is a classic skeptical probe suggesting the Justice finds the argument's logic potentially absurd or overly contingent on arbitrary organizational choices. It challenges the principle underlying petitioner's argument by implying it could lead to inconsistent or unprincipled outcomes.”
I don't think everything depends on that. I think that this is a unique case because the fact that Google organizes its data that way is not some kind of arbitrary engineering decision. It really is essential to the security of a system with lots of private accounts to index them by account. So the technologists' amicus brief, I think, has a good analogy here. It says that it's not, you know, arbitrary that a hotel divides different people into different rooms as opposed to stacking all of the bunk beds in the lobby. Like, a hotel which divides people into different places, it's logical to have walls between them. And in this case, there's, you know, virtual walls as opposed to physical 1 walls. But I don't think the fact that Google could have constructed its system in a completely different and, from our perspective, inappropriate way should affect the analysis.
I'm sorry. Finish, please.
I was just going to say this seems very complicated from the user's point of view, frankly. You know, I have no idea how my data is stored and whether it's in these virtual lockers or not. And I guess one question that I have for you is I'm struggling to decide how to think about this case. One way to think about this case is that, listen, our physical intrusion cases, our property cases require a physical intrusion, and Katz set us off on this course that when we're talking about technology, we think about it in terms of reasonable expectations of privacy. And I am, frankly, a little bit 1 nervous -- and, I mean, I think the government makes this point well -- I'm a little bit nervous because this is very complicated, right, figuring out how bailments apply, what the property interest in this data is. Why not just think about this from the perspective of reasonable expectation of privacy?
“The Justice is openly wrestling with the complexity of the case, expressing genuine concern about applying property/bailment frameworks to digital data while suggesting the Katz reasonable expectation of privacy framework might be simpler. The 'frankly nervous' language signals concern about the implications of the petitioner's approach, while the closing question probes the petitioner's reasoning, reflecting both engagement and mild skepticism about the property-based argument.”
That would be fine with us, Your Honor. We've offered two alternative paths. Different members of the Court have articulated the -- you know, the --
-- relevant test differently. I mean, in Carpenter, the cart -- Court relied on reasonable expectations of privacy. We think there's two different sources here of the reasonable expectation. One is the fact that it was stored in the password-protected account. This Court has said that property issues are instructive as to the reasonable expectations, even if not dispositive. So, if you think it matters that this was in his password-protected account, you can say that that's pertinent to the privacy inquiry without getting into this trespass and 1 bailment law, as well as the sensitivity of the data, which was at issue in Carpenter.
Okay. Well, this is pretty -- so I think Carpenter -- we haven't talked about Carpenter yet -- is -- is pretty on point, but this is different from Carpenter. Putting aside that this was in a password-protected account, taking account of the fact that Google had the right to use this for advertising purposes, right, I mean, he was -- this was a few hours and it was a public location. And nobody has a reasonable expectation of privacy in their public observable movements. So does that make this different from Carpenter?
“The Justice is actively probing whether Carpenter applies by distinguishing key facts (short duration, public location, Google's advertising rights), suggesting skepticism toward petitioner's reliance on Carpenter while also showing genuine intellectual engagement in working through the doctrinal differences.”
So I still think that even though the stretch of time was lower than in Carpenter, there is still a reasonable expectation of privacy for a few reasons. First of all, I don't think it's just the two hours. I think it's the -- the forever. It's the comprehensiveness and the ability of the government to get access to really any two-hour stretch anywhere it wants 1 to at any point in the past. It's -- I think it's quite different from a case like Knotts, where, you know, the police were following someone on a highway and they put a beeper just to enhance the quality of the visual surveillance. And so, you know, that -- you know, this Court in Carpenter framed the question as can't -- are police doing what they could have done in the past, or is this a fundamental increase in the ability of, you know, law enforcement to conduct surveillance. And, here, I think it is. I mean, the government has this tool that can go any point in the past at any stretch of time. It -- you know, it could figure out where, you know, all of the people rather than just one person in a particular place, and it can follow that person around. Like, we see in this case, of the nine people who were of greatest interest to the government at step 1, it followed those people around outside the geofence at step 2. And I think that all of those considerations create significant privacy implications even though it's true the initial geofence was just an 1 hour.
But you can't raise the Fourth Amendment issues or the Fourth Amendment rights of the other people who might be captured in the geofence. We're really just talking about your client's Fourth Amendment rights, right? I mean, because you keep pointing out, well, this swept in a lot of innocent people. Sure. But, really, it's your client's Fourth Amendment rights that we care about here.
“The Justice is probing and partially correcting the counsel's framing, pointing out a legal principle that third-party Fourth Amendment rights are not cognizable for the petitioner — this is both clarifying (seeking to sharpen the legal issue) and mildly skeptical of the breadth of the argument being made, while not being overtly hostile.”
That's true. I just think, broadly speaking, when we're considering the privacy implications of -- of the rule and reasonable expectations of privacy, you know, I just think it's relevant, you know, what the -- the Court's rule is, how is it going to affect, you know, third parties. I understand it's just Petitioner's rights at stake, but even staying laser-focused on Petitioner, you know, this was a law enforcement tool that allowed the government to determine where Petitioner himself was at any point in the past.
Oh, sorry. Are you done?
“This is a purely procedural, administrative utterance where the Justice is checking whether counsel has finished speaking. It carries no substantive judicial sentiment and is standard courtroom management.”
Only -- only in public places, though?
“The repetition of 'only' suggests the Justice is probing or questioning a limitation in the argument, possibly skeptical of whether the restriction applies only to public places. However, it could also be a straightforward clarifying question seeking to confirm the scope of the petitioner's position.”
Well, the government has taken the position in its brief that even if you're in your own house and a geofence warrant is used, the government has a footnote suggesting that there wouldn't be a constitutional violation either. Obviously, this case did involve a bank. I acknowledge that, although -- just one other word -- because of the error bars, because of the confidence intervals in some of these estimates, actually, those confidence intervals may have encompassed people's homes, and, in fact, three of the people within the geofence went to their houses and were possibly identified by our expert. Yes, Your Honor?
So I wanted to invite you to finish your answer to Justice Sotomayor when you said -- you tried to defend the G -- the general warrant analysis, and then 1 you said, even if you don't agree with that, I have another point. But, before you do that, let me just home in for a second on the general warrant analysis. If we take Justice Barrett's point that this is really about reasonable expectation of privacy, what about the initial sorting intrudes on anyone's reasonable expectation of privacy?
“The Justice is actively managing the dialogue by inviting the counsel to complete their argument while also probing a specific legal issue (general warrant analysis vs. reasonable expectation of privacy). The tone is intellectually engaged and clarifying, with some skepticism embedded in the final question challenging the petitioner to identify what exactly constitutes the privacy intrusion.”
I guess I just think that when I -- if I have, you know, information in a physical storage, you know, safety deposit box, I guess I think that my expectation is that no one is going to look inside for any reason. Even if a tool is used, like, you know, the Kyllo tool, you know, the Thermovision, for any reason, if I have stuff inside, people won't look at it in order to conduct a law enforcement investigation. And I understand the intrusion at step 1 was -- was fairly limited. It was just a computer zipping past all these accounts just checking quickly whether they were in a particular place. But, you know, cases like Jones say that even a very small trespass is 1 enough. But I see my red light is on. If I could just answer Your Honor's second question?
Well, why don't you wait until we get --
“This is a procedural/administrative interruption directing counsel to wait, likely for a question or for other justices to finish. It carries no substantive evaluative content and is purely procedural in nature.”
-- back to that. It seems to me that the exigent circumstances exception could well expand if you're right. I mean, obviously, you have situations where you know somebody in this particular crowd has snatched a child or was involved with somebody who snatched a child. In those situations, I suppose you agree that you don't have to go through a warrant process but can access the information under exigent circumstances?
“The Justice expresses concern that accepting the petitioner's argument could expand the exigent circumstances exception, while simultaneously testing the petitioner's position with a hypothetical scenario (child abduction) to probe the logical boundaries of their argument. The phrase 'could well expand if you're right' signals concern about broader implications, while the hypothetical reflects engaged exploration of where the petitioner draws the line.”
I do. The Court made that very clear in Carpenter. I mean, this warrant was sought several weeks after the crime, and so any exigent circumstances, I think, argument would have gone away. Our position today is not intended to undermine any well-recognized exception to the warrant rule.
Well, my -- my 1 question is whether -- whether intended or not, whether it could be used to expand it a great deal. I mean, what's exigent can be expanded if, in fact, it makes sense. It's when you have -- you don't have this much access, you can't -- doesn't do any good to say, yeah, okay, you know, you have to search to find out who all these people are. But, if at the push of a button you can find out who they are, that might give you more opportunities to avail yourself of the exception. I don't know which way that cuts, but it does seem to me that it might undermine privacy interests further --
“The Justice is expressing concern about the broader privacy implications of expanding the exigent circumstances exception through technological ease, worrying that easy database access could erode privacy protections. The tentative, exploratory tone ('I don't know which way that cuts') reflects genuine intellectual engagement mixed with concern about unintended consequences.”
-- or -- or cut the other way in the sense of giving you more opportunities to perhaps catch people who are -- you know, planted a bomb or whatever.
“The Justice is intellectually exploring a hypothetical scenario about how the argument could 'cut the other way,' suggesting a bomb-planting scenario as a counterpoint. This is characteristic of engaged, exploratory questioning where the Justice is testing the implications of the argument from multiple angles, though there is some underlying concern about public safety consequences.”
Look, if there's an ongoing emergency with a bomb, I mean, we're not going to argue against the use of these law enforcement tools even if there might be, you know, a significant amount of privacy violations. And so, yeah, I mean, this can be a potential useful tool in the case of a bona 1 fide exigent circumstance -- exigent circumstances. We're -- we're certainly not challenging that, Your Honor.
Justice Thomas, anything further? Justice Alito?
“This is a purely procedural utterance from the presiding Justice checking with colleagues for additional questions. It has no emotional valence and is entirely administrative in nature.”
Justice Kagan asked you whether this would apply to all searches, all -- all digital searches. Let me go back to the pre-digital era. It wouldn't -- it's not at all uncommon, it was not at all uncommon, for a grand jury to issue a subpoena requiring a company to turn over a category of particularly described documents, but that, for the company to find those documents, required a search through a vast store of hard-copy documents. What's the difference between this situation and that situation?
“The Justice is drawing an analogy between digital searches and pre-digital subpoenas to probe the strength of the petitioner's position, suggesting their argument may not be as novel or distinctive as claimed. The 'What's the difference?' framing is a classic skeptical challenge questioning whether the distinction being drawn holds up.”
So I don't think a grand jury subpoena or any kind of subpoena would have been constitutionally permissible in this case.
Well, I know you say that, but what is the -- what is our test for 1 determining when a grand jury subpoena violates the Fourth Amendment?
“The phrase 'Well, I know you say that, but...' signals mild skepticism by dismissing counsel's prior assertion and redirecting to demand a precise legal standard. The follow-up question about the Fourth Amendment test is also genuinely clarifying, seeking doctrinal precision rather than purely challenging the argument.”
So I think there's two circumstances when it does. One is when the holder of the documents are really a bailee of someone else's documents. So one example would be a grand jury subpoena directed at the Postal Service or FedEx asking it to open every single package or piece of mail to find a piece of data, or, you know --
When it's the company's own documents?
“This short, pointed question appears to probe or challenge the counsel's argument by highlighting that the documents in question belong to the company itself, suggesting a potential inconsistency or weakness. It carries elements of both skepticism and genuine clarification-seeking about the relevance of document ownership.”
Right. So when it's the -- so, of course, as we've said, we don't think that's this case. But, when it's the company's own documents, I just go back to the test in Carpenter, which is there's a narrow category of cases in which a -- a person will have a reasonable expectation of privacy in business records held by a company, and in that category of cases, the subpoena's unconstitutional. But --
Well, in -- I'm sorry, go ahead.
“This is a purely procedural exchange where the Justice defers to counsel mid-interruption, showing basic courtroom courtesy with no substantive content or emotional valence.”
Well, in Carpenter, what seemed to be a very important feature, I think maybe a dispositive feature, was that the information that was sought was information that the user of the cell phone had no choice but to disclose because the cell phone tower location is an indispensable feature of actually using your phone. That is not the situation here.
“The Justice is distinguishing the petitioner's likely reliance on Carpenter by identifying a feature of that case (involuntary disclosure) that does not apply here, effectively undermining the petitioner's argument through analytical comparison. This is classic skepticism — probing a weakness in the argument by drawing a limiting distinction.”
I take the point that it's possible to function in society without having location history enabled, although, you know, it's -- it's actually quite hard to function without having anything in the cloud. I'd say virtually everyone in this room has at least something in the cloud.
Well, but that's -- we're not talking about everything in the cloud. We're talking about location history --
“The 'Well, but' opening signals pushback and correction, indicating skepticism toward a perceived overstatement. The Justice appears to be narrowing the scope of the argument, correcting an overly broad characterization ('everything in the cloud') by redirecting to the specific issue (location history), which combines skepticism with clarifying intent.”
Right. It's actually quite hard --
-- on an Android -- on an Android phone, where you have to take a number of steps in order to disclose it.
“The utterance appears to be mid-thought, likely elaborating on or completing a point about the technical steps required to access information on an Android phone. The fragmentary nature and technical specificity suggest the Justice is clarifying or engaging with a factual scenario, possibly probing the complexity of disclosure steps.”
You have to choose to disclose it.
“This short, pointed statement appears to be challenging the petitioner's position by highlighting that disclosure is a voluntary choice, suggesting skepticism about an argument that may be downplaying the voluntary nature of disclosure. It could also be a clarifying restatement of a legal condition to test or probe the argument.”
-- I take the point that you have to click yes, I'm in, in order to enable location history on your Android phone or any other type of phone. But, first of all, I just -- if you agree with us that this is a personal record and not a business record, that argument just doesn't matter because you make the choice to enable email or put documents or photographs into the cloud. You're choosing to send that photograph, but that choice shouldn't undermine the Fourth Amendment protection, just like your choice to put something in the mail.
Well, you think this is not a commercial record? Why do you think Google compiles this, keeps this information? It does it so it can sell advertisements.
“The Justice is sharply challenging the petitioner's characterization of Google's records as non-commercial by asserting a counterpoint (Google compiles data to sell ads), demonstrating strong skepticism toward the argument. The rhetorical framing and assertive tone edge toward mild hostility, though the Justice is also actively engaging with the substance of the commercial nature argument.”
No, Google itself takes the position that these are not business records. I understand it's just a third party's view, but, you know, it's unusual for a company to refuse to say that something is its own records. 1 You know, unlike with CSLI, you have total -- as Your Honor said, you can turn it on, you can turn it off, you can delete all of it anytime you want. You can delete part of it. It's really unlike something like CSLI in which you have the business keeping the records for its own purposes.
I'm sorry, are you through?
“This is a procedural, administrative question asking whether counsel has finished speaking, with no substantive legal content. The slight hint of clarifying reflects the genuine question being posed, and minimal hostility accounts for the possibility of a mild interruption dynamic.”
No, you're -- you're on.
“This is a purely procedural statement allowing counsel to continue speaking, with no emotional valence or substantive content. It is a standard administrative directive typical of courtroom time management.”
-- go back to Justice Barrett's -- if you're not through, Sam, I thought you were through.
“This is a purely procedural/administrative comment where one Justice is checking whether a colleague (Justice Alito, referred to as 'Sam') has finished his line of questioning before proceeding. There is no emotional valence or substantive legal content.”
To go back to Justice Barrett's question. When the police are searching or asking for a search result, there's no way to predict whether they're going to invade your privacy, correct?
“The Justice is building on a prior question from a colleague to clarify or confirm a specific premise about the unpredictability of police searches and privacy invasion. The 'correct?' tag suggests they are seeking confirmation of a factual point, making this primarily clarifying, though the underlying concern about privacy implications is also evident.”
That's right. Searches are determined ex ante.
Regrettably, because people take their phone now everywhere, including, I suspect, some people to the bathroom, you really have no idea what information, private information, because it'll follow you to a brothel, it'll follow you to a cannabis shop, it'll follow you to just about anywhere where there's a reasonable expectation of privacy, correct?
“The justice expresses deep concern about the privacy implications of ubiquitous smartphone tracking, using vivid examples (brothel, cannabis shop, bathroom) to illustrate how pervasive location data can reveal intensely private information. The word 'regrettably' signals genuine worry about the consequences, and the rhetorical examples suggest the justice is troubled by the broad surveillance implications rather than simply probing the argument's logic.”
And so it really doesn't matter. I don't think the time is important, correct?
“The Justice appears to be seeking confirmation of a point they believe they understand — that timing is irrelevant to the argument — using a tag question ('correct?') that seeks affirmation. This is primarily a clarifying question aimed at confirming their understanding, with mild approval implied by the framing 'it really doesn't matter.'”
So, whether it's a minute that you're searching for or six weeks, it's not the time that's at issue. It's whether or not private information in which you have a reasonable expectation of privacy will be sought, correct?
“The Justice is reformulating and distilling the core legal principle at stake — that it's the nature of private information exposed rather than duration of surveillance that matters — and seeking confirmation with 'correct?' This is primarily a clarifying move that also shows intellectual engagement with the argument, and the framing may slightly support the petitioner's position.”
That's why Justice Scalia said it didn't matter for Fourth 1 Amendment purposes to search the heat waves emanating from your house because, though it's not giving out private information, it's -- you can't know in advance what it's going to disclose, correct?
“The Justice is referencing Kyllo v. United States and Justice Scalia's reasoning about thermal imaging to probe the boundaries of Fourth Amendment protection, testing whether the counsel's argument aligns with or is undermined by this precedent. The 'correct?' tag signals both intellectual engagement and mild skepticism, seeking confirmation while implicitly challenging the argument's logical consistency.”
Yes. JUSTICE SOTOMAYOR. All right. Now let's go to that more important part of the question that Justice Barrett asked, which is we didn't answer this question in Carpenter, but I don't see how its logic made time the defining characteristic. Could you explain why not?
It would seem to me that particularity has nothing to do with time. It has to do with the relationship of time to the circumstance that justifies a need.
“The Justice is pushing back on the petitioner's framing of 'particularity' as it relates to time, suggesting their characterization is off-base ('It would seem to me...'). This reflects skepticism toward the argument while also showing intellectual engagement in reframing the legal concept.”
Right. So there -- there's two questions about time, one of whether there's a search at all and then a second question of whether the warrant was sufficiently particularized. So, as to the first question, I don't think the time period should matter as to the 1 search because, you know, I don't think the Court should be in the business of drawing lines between seven days and two days and 24 hours, especially since the government gets to choose the time interval. So two hours at a place selected by the government really can reveal a lot. There's a --
Sure. But the government, in search -- in setting forth the warrant, has to give a reason for why that two hours is reasonable, correct?
“The Justice appears to be probing the petitioner's argument by pressing on the requirement for justification within a warrant, showing mild skepticism while also seeking clarification about the procedural/legal standard. The 'correct?' at the end signals the Justice is testing whether counsel agrees with this proposition, suggesting a mix of skepticism and clarifying intent.”
So that gets to the question of particularization, and that goes to the warrant. And I would like to say a few words about what the Court should do if it doesn't agree with me that this is a general warrant in which all tens of millions of people were searched. We still think there is a Fourth Amendment violation because there wasn't probable cause to search all 19 people within the geofence merely because of their proximity to the crime. I get the fact that a time 1 period was specified.
Well, Google itself said that to them. And I don't know why we're rely -- why we would say it's okay to rely on Google to do that. They moved it from 19 to nine, wasn't it?
“The Justice questions why reliance on Google's own statements is appropriate, expressing doubt about the validity of that reliance. The rhetorical 'I don't know why we would say it's okay' signals skepticism toward the petitioner's argument, with some concern about delegating authority to Google to make these determinations.”
That was at step 2, Your Honor.
Yes. But, at step 1, 19 people's information was exposed merely because they were near the scene of the crime. And so I don't think that the problem -- you know, I understand that the warrant specified a time period, but the particularity requirement in the Fourth Amendment requires particularity as to what is searched. And I don't think that there was -- certainly, I don't think there's particularization here when the warrant just said, whatever unspecified number of people are in the proximity of the crime, those are the people to be searched. I don't think that's a particularized description of what is to be searched, and I think there's a probable cause here -- problem 1 here because the fact that someone's near the crime doesn't create probable cause to search their diary, and we view this as the functional equivalent of a search of their diary.
Can I ask you to explain that a little bit more? Because you were saying that this was the answer if we rejected your categorical argument, is that correct?
“The Justice is explicitly asking for elaboration and confirmation of understanding ('Can I ask you to explain...'), indicating a genuine attempt to understand the structure of counsel's argument. The phrasing is neutral and non-confrontational, suggesting clarification rather than skepticism.”
If you reject our argument that there's been a search of millions of people, then yes.
Yeah, but, functionally, isn't that argument going to be the same? In other words, it's going to prevent the government from doing this kind of search in order to get these 19 people?
“The Justice is pushing back on a distinction the counsel is drawing, suggesting that functionally the arguments lead to the same outcome. The 'Yeah, but' opener signals mild skepticism, probing whether the distinction being made actually matters practically.”
Not necessarily. So sort of a -- a narrower argument would be that if there's probable cause to really believe that every single person in the geofence has relevant information, then, you know, that -- that's a stronger case for the government. So that might come up, for example, 1 suppose there is a murder in the woods and it's 3 a.m. and there's, you know, one criminal and one victim and you draw a circle around that and there really is probable cause to think that every single person in that circle is either the murderer or the victim, then maybe the government can say there's probable cause that every person whose data is exposed to the government in that case will have relevant evidence. That's not the case here, where the geofence encompassed the bank and the church, and, in fact, most of the 19 people were just sitting at church the whole time. So that would be a narrower way to invalidate this warrant that wouldn't necessarily impugn all geofence warrants like this one.
So if in this case the geofence had encompassed just the bank perhaps?
“The Justice is posing a narrowing hypothetical to explore the boundaries of the geofence warrant issue, suggesting intellectual curiosity about how a more limited search area might change the analysis. The 'perhaps?' trailing question mark indicates exploratory engagement rather than skepticism or hostility.”
Right. So, I mean, our -- our -- as the Court knows, we still 1 think there's a general warrant. We still think that everyone's storage locker is being searched. But -- and we also think there's a --
There might be probable cause to -- to think that everybody in the bank might have some information?
“The Justice is probing the logical limits of the petitioner's argument by presenting a reductio ad absurdum scenario — suggesting that if probable cause extends broadly, it could encompass everyone in a bank, which challenges the reasonableness of the petitioner's position. The rhetorical framing signals skepticism about the scope of the argument.”
Right. That's right. If you can draw a small enough geofence at a small enough time interval that everyone there either committed the robbery or witnessed it, then you might say there's probable cause that everyone has relevant information. I still would say there's a particularity requirement. I'd still talk about a general warrant. But, yes, that defect in the warrant wouldn't exist in that --
Right. And Google can track you down to several feet, right?
“The Justice is highlighting the precision of modern location tracking technology, suggesting concern about privacy implications. The rhetorical confirmation ('Right') combined with the pointed observation about Google's tracking capability indicates worry about the broader consequences of allowing such precise surveillance without warrant protection.”
That's right. Correct. Three meters, Your Honor.
Yeah. And then, in terms of the timing on the search side that we've discussed, the fact that the government peeks in your mail for just a quick second or 1 looks through your safety deposit box or your hotel room or your diary for just a minute, we -- we would -- that's a search, right?
“The Justice is using analogical reasoning with examples (mail, safety deposit box, hotel room, diary) to probe whether the brief duration of a government intrusion matters for Fourth Amendment search analysis, implicitly challenging any argument that a short-duration access wouldn't constitute a search. The rhetorical structure suggests skepticism toward a position that timing/duration might negate search status.”
Under -- under either property or a reasonable expectation?
“The Justice is asking a short, direct question to clarify which legal framework (property-based or reasonable expectation of privacy) the counsel's argument applies under. This is a classic clarifying question seeking to pin down the scope of the argument.”
Talk for me -- to -- with me for a minute about the Stored Communications Act and the government's responses to your arguments.
“The Justice is inviting counsel to discuss a specific legal area and the government's responses to their arguments, indicating genuine curiosity and intellectual engagement. The conversational phrasing 'Talk with me for a minute' suggests an open, exploratory dialogue rather than skepticism or hostility.”
Sure. So we believe that a warrant was required under the Stored Communications Act. We didn't file a motion to suppress on that ground because suppression isn't an available remedy. But that may be pertinent to the question of a reasonable expectation of privacy because people have an expectation the government will get a warrant if there's a statute that requires the government to get a warrant and there's also a private cause of action on the table. The government takes the position that possibly the Stored Communications Act doesn't require a warrant because the cell phone is a 1 tracking device. I mean, if that's true, then anything that's transmitted from the cell phone into storage, your email if you're sending it from your phone or a photo or anything else, all of that would be information transmitted by a tracking device. None of that would be protected. So I don't think that's a tenable way of getting around the Stored Communications Act. And so precisely because Congress has acted and, from our perspective, required a warrant and, in fact, in this case, a warrant was obtained, albeit one that we don't think complies with the Fourth Amendment, you know, I think that weakens the force of the government's argument that we should defer to Congress because Congress has actually said that a warrant is needed here. And, you know, implicitly, we think that the Stored Communications Act requires a warrant that complies with the Constitution, and in this case, in our view, it did not.
How about the question of whether it's content versus a record?
“This brief question appears to be genuinely seeking clarification or exploration of a legal distinction (content vs. record), with no apparent hostility or skepticism. The phrasing 'How about...' suggests the Justice is pivoting to probe a different angle of the argument in an intellectually curious, exploratory manner.”
So the government hasn't disputed that this is content. It's not metadata, it's not a record, because the content at issue here, it's not just something about a communication, like I was in this place when I sent this email.
It is the location. Like, the -- the reason you're transmitting this to Google is for it to store where you were in order to create your timeline. So this is content, and the government actually doesn't dispute that in this case.
And talk to me about Virginia and other similar statutory laws in this area.
“The phrase 'talk to me about' signals genuine inquiry seeking information about Virginia's statutory framework and similar laws, indicating a clarifying or exploratory intent without apparent hostility or skepticism. The Justice appears intellectually engaged in understanding the legal landscape.”
So Virginia has a statute, the Virginia Computer Crimes Act, that defines data on a computer network to be a form of property. It creates criminal liability for trespasses. It also creates civil liability for malicious trespasses. And so, you know, we view the question of whether a property interest exists to be one of federal law. Like the Court held in the 1 Tyler versus Hennepin case, you know, the Court should consider a common law rule, not -- not state by state. But I think state law is a pertinent input into the ultimate federal question, and the fact that Virginia and many other states have explicitly recognized data as a type of property and have created statutory torts for trespass on that data is, I think, pertinent to the Fourth Amendment question here.
Okay. Now we -- we could bypass the search question if -- if we just resolve the case in your favor on one of the particularity grounds, right?
“The Justice is exploring a potential alternative pathway to resolve the case in petitioner's favor, suggesting intellectual curiosity about narrowing the decision grounds. The framing is collaborative and somewhat favorable to petitioner, blending clarifying intent with engaged exploration of case resolution strategies.”
Well, I think the Court -- I mean, the government would say that if it's not a search at all, it didn't need a warrant in the first place.
Well, if we assumed it were a search --
“The phrase 'if we assumed' signals a hypothetical being posed to explore the logical consequences of a legal premise, characteristic of intellectual engagement. The Justice is inviting counsel to reason through a scenario, which is typical exploratory questioning rather than skepticism or hostility.”
-- without deciding, we could just decide it on particularity grounds. And you've talked quite a lot about the step 1 particularity problems you see. Can 1 you talk about the particularity problems you see at step 2 or step 3?
“The Justice is actively suggesting a narrower grounds for decision (particularity) and inviting counsel to elaborate on arguments at steps 2 and 3, showing genuine intellectual engagement and collaborative exploration of the legal issues. The tone is constructive and curious rather than skeptical or hostile.”
Sure. So I think the problem at step 2 and step 3 is that the government conducted these follow-up searches, right, so they got an extra hour's worth of information about nine people and then they de-identified the people. But the warrant did not identify those people with particularity. It didn't even identify a means for the government to find those people. All it said was the police are going to figure out the really suspicious people and they're going to do those extra searches. So the government says that the original warrant was a sufficient basis to de-anonymize and get the two hours from everybody in the geofence. So that's wrong for a couple reasons. One is it just -- there's just clearly not probable cause to get two hours of information, including data outside the geofence, merely because someone was, like, sitting in church within an hour of the crime. And, second, even the geofence warrant itself doesn't authorize that. It doesn't say 1 the police can go ahead and collect data from everybody. All it says is that once the police winnows down the 19 or however many there are to some smaller number, then it can collect additional data. But that's not particularized because it doesn't say how to identify those people.
Would that be a narrow basis on which to resolve this case?
“The Justice appears to be exploring a potential narrow grounds for resolution, suggesting intellectual curiosity and possibly signaling approval of a limited ruling approach. The question is exploratory rather than hostile or skeptical, probing whether a narrower basis could resolve the case without broader implications.”
It -- that would be a very narrow basis. I mean, I would caution the Court that if the Court resolves the case on that basis, then, in future cases, the government can cure the problem here by just obtaining another warrant before step 2, which may be the answer. But, you know, that would be a particularly narrow way of resolving the case. Obviously, we have concerns with step 1 as well, and so, you know, we -- we believe that's unconstitutional.
Assuming it's a search for purposes of this question and that I 1 don't buy your general warrant argument, how can you overcome Zurcher for purposes of your argument that it's not sufficiently particularized, et cetera?
“The Justice explicitly states 'I don't buy your general warrant argument,' signaling direct skepticism toward the petitioner's position, while also challenging counsel to overcome an adverse precedent (Zurcher). The framing assumes away one argument and challenges the next, indicating probing skepticism with some intellectual engagement.”
Okay. So I view Zurcher as answering a very different question from this case. So Zurcher holds that the Fourth Amendment permits a search of a premises of someone who is not implicated in the crime at all as long as there's probable cause to believe that there's evidence on those premises that will be pertinent to the criminal investigation --
And, here, we have that?
“This very brief question appears to be the Justice checking whether a previously established condition or standard applies to the current case. It could be skeptically probing whether the petitioner truly meets some requirement, or simply seeking clarification/confirmation, making skepticism and clarifying roughly equal.”
We do. But what we understand --
-- to have happened here is more like a search of, you know, 19 separate safety deposit boxes rather than one single place, the Stanford University office, like in Zurcher. So I guess, you know, here would be a relevant physical --
Why do you characterize it that way? It doesn't seem that way to me. It's a search of one place somewhere.
“The Justice directly challenges the counsel's characterization with 'It doesn't seem that way to me,' indicating clear skepticism and mild pushback against the framing being used. The question 'Why do you characterize it that way?' also has a clarifying element, but the dismissive counter-assertion leans this firmly toward skepticism with a hint of hostility.”
Well, the argument the government would make is that Google, like, the expansive entirety of Google's servers, are a single place. I think that's a pretty dangerous holding because, if the Court were to reach that --
We're talking about a warrant that's sufficiently particular here. So --
“The Justice appears to be redirecting or reframing the discussion toward the specific issue of particularity, suggesting they want to narrow the argument. The 'So --' trailing off indicates either an interruption or a pivot, which could signal mild skepticism or simply an attempt to focus the debate on the key legal question.”
-- it is a search then for purposes of this question, but it really just boils down to, I think, is the warrant sufficiently particular?
“The Justice appears to be distilling the core legal question and confirming their understanding of the argument's thrust — conceding the search issue while redirecting focus to particularity. This reflects active intellectual engagement and clarification rather than skepticism or hostility.”
Right. So, if the Court considers Google --
So we have probable cause. You admitted that correctly. And it's just then is it sufficiently particular? And it seems like Detective Hylton here, you know, really went through a lot of 1 the steps that should be applauded in terms of narrowing this down and going through multiple steps. I guess I'm trying to figure out why this was bad police work to get a warrant. A lot of Fourth Amendment cases we say get a warrant. Well, they got a warrant. And then you're saying, you know, it's not sufficiently particular. But he went multiple steps. How many names were ultimately given to the detective?
“The Justice is clearly skeptical of petitioner's argument by noting that the detective followed proper warrant procedures and deserves to be 'applauded,' implying the challenge to particularity may be unfounded. The final question about how many names were given is clarifying, but the overall tone pushes back on the petitioner's position.”
Well, it was three devices, Your Honor.
Three names? So, in the end, three names. You're talking about millions and millions, but it was three names in the end.
“The Justice is pointedly contrasting the petitioner's broad claims about 'millions and millions' with the reality of only three names, using repetition and emphasis to undermine the argument's scope and credibility. The rhetorical structure signals strong skepticism, bordering on hostility, toward the petitioner's position.”
So, first of all, I'm not casting any aspersions whatsoever on Detective Hylton. There's no sign of any kind of malice whatsoever. That's not our argument today, okay? We do think that the warrant was defective, and if I could just make a couple points about your questioning. So, first of all, I understand a 1 warrant was obtained here, but the Court should be realistic about how much protection the warrant requirement really provides in a case like this. Sorry, Your Honor.
Well, that's what the Fourth Amendment says. So --
“The 'So --' trailing off suggests the Justice is pointedly reminding counsel of the constitutional text, implying their argument may conflict with or ignore what the Fourth Amendment plainly states. This has a mildly skeptical and potentially hostile edge, as if the Justice is cutting off or redirecting the argument by anchoring it to the literal text.”
Right. So the warrant requirement --
You know, the Fourth Amendment's a floor, not a ceiling of protection. And the warrant requirement, we have to stick with the words of the Fourth Amendment --
“The Justice is asserting a legal principle (the Fourth Amendment as a floor, not ceiling) in a way that seems to support or build upon the petitioner's argument about warrant requirements, while also engaging intellectually with the constitutional text. The tone is affirmative and exploratory rather than skeptical or hostile, suggesting approval of the underlying premise combined with engaged discussion.”
-- and the history of it.
“This is a very brief, fragmentary utterance — likely a continuation of a prior thought or an interjection adding to a topic. Without more context, it reads as largely procedural/neutral, possibly clarifying or engaging with historical context of the issue.”
All I was going to say is that the government obtained a warrant merely because someone was holding a cell phone near the scene of a crime. And if that's enough to obtain a warrant, it's going to be obtainable in a wide number of cases. That's not just a factual quirk about this case. 1 That's many cases in which this type of warrant is obtained. But I'm happy to stipulate --
But it's geographically and temporally limited, though, the warrant --
“The Justice appears to be pushing back on a point about warrant scope by noting its geographic and temporal limitations, suggesting some skepticism about the petitioner's argument, while also partially clarifying the nature of the warrant in question. The 'though' signals a mild counter-point or correction.”
Yes, but the Fourth Amendment, and I'm happy to --
-- in -- in a way that the magistrate, a third party, not the executive, not the law enforcement, will neutrally review and oversee. And lots of times judges will force the -- the warrant to be narrowed, right?
“The Justice appears to be building upon and reinforcing the argument for warrant oversight by magistrates, noting that third-party judicial review provides neutrality and that judges often narrow warrants. The rhetorical confirmation question 'right?' suggests the Justice is affirming this point while engaging intellectually with the framework, showing mild approval of the warrant oversight system being discussed.”
Your Honor, the Fourth Amendment requires particularity as to the place to be searched. In this case, the geofence was not the place to be searched. The place to be searched was these Google accounts. So --
Well, so suppose we have a murder and we know all the police know is that the murder was at a restaurant, a particular restaurant. And so the search is for -- the request is for everyone who dined at that restaurant in a two-hour period and for 1 the names of those people. Thoughts?
“The Justice is posing a hypothetical scenario to test the boundaries of the petitioner's argument, exploring how their reasoning would apply to a geofence-like 'reverse location search' in a restaurant setting. This is primarily intellectual engagement, but the hypothetical also carries concern about the implications of broad data requests sweeping up innocent bystanders.”
So, if the Court doesn't buy the argument about a general warrant --
-- okay, then it is possible that you might say that there's probable cause that people who were actually witnesses to the crime, they were at the -- at the restaurant when the crime was committed, you might say there's probable cause to believe that there's relevant evidence in all of those people's accounts. Here, we don't have that. So, first of all, I view this as a search of --
Well, let me ask --
“This is a brief, incomplete utterance indicating a Justice is about to pose a question. There is no discernible emotional valence—it is a standard procedural opener with slight lean toward clarifying or engagement given the interrogative framing.”
-- alter the hypothetical --
“The phrase 'alter the hypothetical' indicates the Justice is actively engaged in exploring a thought experiment, modifying the scenario to probe different angles. This is characteristic of intellectual engagement and possibly clarification, as the Justice seeks to test the argument under different conditions.”
-- or maybe your -- all you know is the murderer was in the restaurant and the search warrant or subpoena, the search warrant is to the restaurant for the 1 list of people -- to the restaurant for the list of people who were in there in a two-hour period.
“The Justice is constructing a hypothetical scenario involving a restaurant search warrant to probe or illustrate the boundaries of the argument, showing intellectual engagement and exploration of the legal question. The self-correction mid-sentence ('or maybe your -- all you know') suggests the Justice is actively thinking through a scenario rather than challenging the counsel's position.”
That's fine -- that is perfectly fine. A subpoena or even a search warrant could be issued at --
And that's different from this how?
“The terse, rhetorical phrasing 'And that's different from this how?' strongly signals skepticism, implying the Justice doubts there is a meaningful distinction between the case at hand and a prior example or precedent. The inverted syntax adds a mildly hostile edge, suggesting impatience or dismissiveness toward the counsel's attempt to differentiate.”
That's right, because we view that as not a search of one entity's property, like one single piece of paper containing a list. We view this more as a search of 19 different people's private papers. Ultimately, the question is the Fourth Amendment --
You only got three names, but -- but --
“The Justice appears to be noting a factual detail ('you only got three names') in a procedural or clarifying manner, with the trailing 'but -- but --' suggesting an interrupted or incomplete thought. The tone is largely neutral/clarifying with no strong emotional valence apparent.”
And do you agree -- you agree with Zurcher, though? There's nothing from Zurcher you're asking -- including the footnote, there's nothing from Zurcher you're asking us to depart from?
“The Justice is seeking confirmation about the scope of the petitioner's argument relative to the Zurcher precedent, specifically asking whether counsel accepts that case in its entirety including a specific footnote. This is primarily a clarifying question aimed at pinning down the precise boundaries of what is being asked, with mild skepticism in the repeated emphasis to ensure the answer is accurate.”
Okay. And do 1 you -- this is just more practicalities, but the local government amicus brief and the 31 states' amicus brief, which has a huge spectrum of attorneys general on that amicus brief, which I think warrants note, talk about the practical consequences of not being able to solve murders. A lot of -- you know, a huge percentage of murders are never solved, for example, and -- and violent crimes. Just want you to respond to that.
“The Justice highlights amicus briefs from local governments and 31 states about practical consequences of unsolved murders, signaling genuine concern about real-world implications. The note that the broad spectrum of attorneys general 'warrants note' suggests the Justice finds this practically significant, while asking counsel to respond indicates engagement with the policy stakes rather than pure skepticism.”
Sure. So, first of all, we're not suggesting that all law enforcement techniques that allow the police to determine everyone within a particular area are inherently unconstitutional. We think this particular technique of serving geofence warrants on Google and requiring search of the -- searches of the Sensorvault, we do think there's a constitutional violation there. But there's many other law enforcement techniques that deploy modern technology that would not present the same types of issues. And the other point is that --
So we haven't taken a 1 position on the constitutionality of tower dumps. That presents a very different set of issues because that cannot be conceptualized as the search of lots of virtual storage lockers. There are other Fourth Amendment arguments on the table there, but I don't think anything the Court says in this case would impugn the constitutionality of tower dumps. Similarly, I don't think anything the Court says in this case would impugn the constitutionality of things like taking security videos, CCTV, and using those to identify a suspect. So there are a lot of other law enforcement techniques that are available to solve crimes in which you know where -- where the crime happened, but you don't know who it is. And we're not challenging those. We're just challenging this one unique particular type of method. And the other thing is, you know, Professor Kerr's brief points out that there's actually quite a lot of geofence warrants that have been issued. Like, the district court says there was 9,000 geofence requests issued 1 to Google in 2019. And there's actually a fairly small number of reported cases involving motions to suppress. So it seems empirically that most geofence warrants just ensnare innocent people because I guess maybe criminals turn off their phones when they go commit bank robberies most of the time. And so, you know, the law enforcement benefits of this particular technique I think it's -- it's easy to overstate, even though, obviously, in this case --
Well, the local government brief disagrees with you on that, but I'll -- I'll --
“The Justice is pointing out a contradiction between the petitioner's argument and the local government brief, which signals mild skepticism by introducing a counter-authority. The trailing off ('I'll -- I'll --') suggests the Justice is letting it go for now, keeping some neutrality, but the introduction of a disagreeing brief is a probing challenge to the argument's credibility.”
Well, there's a lot of amici --
And they have specific cases, but I'll leave it there. Thank you.
“This is a procedural wrap-up statement where the Justice acknowledges a point and closes their line of questioning with 'Thank you,' indicating standard judicial demeanor with no strong emotional valence.”
I mean, there's -- I think our side has some philosophical diversity on -- from the amici as well. So I think both sides have a lot of people with different views on this.
Mr. Unikowsky, would there have been a Fourth Amendment problem if the police had purchased this data from Google?
“The Justice is posing a hypothetical about purchasing data from Google to probe the boundaries of the Fourth Amendment argument, suggesting intellectual curiosity about how the third-party doctrine applies to commercial data purchases versus law enforcement access. This is exploratory engagement testing the logical limits of the petitioner's position rather than expressing hostility or strong skepticism.”
I don't think the police could have theoretically done that.
Because Google's policy is that it doesn't sell this data. It has a pretty strict privacy policy where it doesn't give the data away unless --
But it could. I mean, I'm just looking at the policy, and it says that Google may share non-personally identifiable information publicly and with our partners, advertisers, publishers, rightsholders, specific partners to collect information from your browser or device for advertising purposes.
“The Justice is pointing to specific policy language that contradicts or complicates the petitioner's argument, suggesting skepticism by highlighting a real-world example that undermines their position. The phrase 'But it could' signals pushback, while the direct quotation from the policy document shows engaged probing of the argument's weaknesses.”
Right. No, that -- so that's -- so, you know -- so Google shares aggregated information like, you know, how many people searched for the word "YouTube" last 1 year and things like that, all right?
But doesn't it share location information too? I mean, I -- I feel like I get ads when I'm in particular places. I mean, I need to check my location services settings, plainly. (Laughter.)
“The Justice is genuinely probing whether the app also shares location information, using a personal anecdote to illustrate the point in a light, self-deprecating manner that drew laughter. The tone is curious and conversational rather than hostile, blending clarification-seeking with mild skeptical probing about the breadth of data sharing.”
Not that I'm going to commit crimes. But it seems to me like Google --
“The utterance appears to be a Justice making a self-deprecating aside while beginning to formulate a hypothetical or analogy involving Google. The playful parenthetical ('Not that I'm going to commit crimes') suggests intellectual engagement and informal exploration of an idea rather than hostility or strong skepticism.”
I suggest you have I -- IT do it.
“This appears to be a procedural or administrative suggestion, likely referring to the court's IT department handling some technical matter. The tone is neutral and practical with no strong emotional valence or argumentative content.”
It does seem to me like Google does give your information away.
“The Justice appears to be pushing back on the petitioner's argument by suggesting that Google does in fact share user information, which introduces skepticism about the counsel's position. The tentative phrasing ('It does seem to me') suggests exploratory engagement, but the directional thrust challenges the argument being made.”
I don't think it does. I think there are other less scrupulous apps --
Okay. Well, maybe it doesn't as a practical matter, but that policy as I read it does permit Google to do it.
“The Justice is pushing back on counsel's argument by distinguishing between practical reality and what the policy actually permits, signaling doubt about counsel's characterization. The 'maybe it doesn't as a practical matter' concession followed by 'but' indicates skeptical probing rather than outright hostility.”
I don't think it does. There's -- so there's -- there's declarations in the record that says that Google doesn't do it, and the privacy policy says that it's not going to share individual data with -- with 1 advertisers. I think what you read is not a reference to location history. I'm -- I'm not sure what --
I don't think it is, Your Honor. There's a declaration in the record and there's live testimony and there's a statement in the private -- privacy policy that Google only -- does not share individual data with -- with advertisers. It just doesn't do that. Like, an advertiser cannot go to Google and say share --
Okay. What if it did? What if it violated its own privacy policy and allowed the police to purchase it? Isn't that a problem between, like, the -- the person who has the Google account and Google? Would that be a Fourth Amendment problem?
“The Justice is probing the petitioner's Fourth Amendment argument by suggesting that a privacy policy violation by Google would be a contractual matter between the user and Google rather than a constitutional issue. This is a skeptical challenge to the Fourth Amendment claim, using a hypothetical to test whether the argument holds up, while also showing intellectual engagement with the underlying legal question.”
It might not be a Fourth Amendment problem because there's, like, the private search doctrine, even if someone unscrupulously but privately takes someone's data and illegally gives it to the government, you might call that a private search that the government --
But doesn't Google have -- I mean, I guess what I'm getting at is doesn't Google have some right? I mean, Google can dip in and dip out at least under the policy as it existed at the time this search -- or this possible arguable search occurred.
“The Justice is challenging the petitioner's argument by suggesting Google may have rights under the policy ('doesn't Google have some right'), which signals skepticism toward the petitioner's position. The self-correcting, exploratory phrasing ('I mean, I guess what I'm getting at') also indicates some clarifying intent as the Justice works through the argument.”
We view this as just like FedEx. So, if you look at the FedEx privacy policy, FedEx says it reserves the right to inspect packages when it needs to do that, but I don't think that means that the government doesn't need a search warrant to inspect packages. In the same way that if you stay at a hotel, you know, the hotel reserves the right to have a housekeeping service come into your room and maybe the housekeeper will see your personal possessions, but that in and of itself is not consent to have the government do that. So, likewise, yes, Google does reserve the right to analyze your data, like if you went to a lot of ski hills, you might see a ski ad on YouTube, but I don't think that in and of itself meant you -- you've waived Fourth Amendment protection with respect to the 1 government seizing it without a warrant. I mean, if Google sold it -- I don't think Google's even capable of that. If Google just voluntarily handed the data to the government, that might be a little bit more like the Jacobsen case, but I -- I don't think that's what we have here.
So I guess I see you as making maximalist arguments about this in ways that I'm trying to understand if they're necessary to get to the point where you want to go. I mean, I thought the key issue was what makes a warrant for a search of this nature sufficiently particularized. That's one way to put it. And so, first of all, we've got Google responding in steps. We have this warrant request. The officer, according to your brief, identifies a geographic area based on where the crime took place and the time. You know, we have a bank robbery at X time. So what I'd 1 like, says the law enforcement officer, is the location history data for 30 minutes before to 30 minutes after a 150-meter radius around the bank. Is that right? Is that how it starts?
“The Justice is primarily seeking clarification on the factual and legal framework of the case, walking through the specifics of how the warrant process works. There's mild skepticism embedded in noting the counsel is making 'maximalist arguments' that may be unnecessary, but the dominant tone is clarifying and engaging as the Justice tries to understand the precise contours of the warrant procedure.”
Okay. And as Justice Kavanaugh points out, at the end of the day, they end up with three names, but we have a lot of steps in between in -- under Google's iterative process for giving the officer this information. So I guess what I don't understand is why you aren't arguing something about needing more probable cause as each one of these steps goes along. Yes?
“The Justice expresses genuine puzzlement ('I don't understand') about why petitioner isn't making a stronger probable cause argument at each step of Google's iterative process, which signals skepticism about the adequacy of petitioner's legal strategy. There's also a clarifying element as the Justice tries to understand the argument's structure while probing its weaknesses.”
I do think that that is one of the arguments we're advancing today, that the government did not obtain a fresh warrant before it conducted the step 2 search, and the initial warrant did not authorize all of the information to be obtained from -- all of the two hours of information to be obtained from everyone within the geofence, and that --
Okay. So fine. But why isn't there probable cause? You -- you -- you seem to be fighting the premise that at the beginning, when the search is drawn, when the fence is drawn, 150 meters around the bank, 30 minutes before and 30 minutes after, and 19 accounts are identified, setting aside your general warrant point --
“The Justice is challenging the petitioner's position by questioning why probable cause doesn't exist given the specific geofence parameters, using 'why isn't there probable cause' as a direct probe of the argument's weakness. The 'Okay. So fine. But...' construction signals impatience with the petitioner's framing and redirects to a specific vulnerability in their argument, indicating skepticism.”
-- you seem to be suggesting or you're arguing that there isn't probable cause to do anything more at that point, that something about the 19 -- they have to have a -- they have to know something about a particular account? I don't understand that. Why isn't it enough to begin with to just ask as the magistrate is your fence reasonable? Is the 30 minutes before and 30 minutes after, is a 150-mile radius -- like, why isn't the step 1 probable cause inquiry just do we have a reasonable scope to begin with? I would think that we would just ask that and that the answer in this case would be yes.
“The Justice is pushing back on the petitioner's argument about probable cause, expressing doubt about the need for knowledge of a specific account and suggesting a simpler 'reasonable scope' inquiry would suffice. The phrase 'I don't understand that' signals skepticism, while the closing statement that 'the answer in this case would be yes' leans slightly against the petitioner's position, though there's also a genuine clarifying element in seeking to understand the argument.”
Well, except for that very last step, I don't disagree. I think the answer in this case would be no.
So what's wrong with the 100 -- is that too wide, is that too big?
“The Justice is directly asking counsel to identify what is wrong with a particular measurement or boundary (the '100'), seeking clarification on the specific objection. The phrasing 'what's wrong with' carries mild skeptical undertones, probing whether the petitioner's challenge to the figure holds up, but is primarily aimed at understanding the argument.”
Why is that too big under these circumstances?
“The question challenges the petitioner's assertion that something is 'too big,' probing the logic of their argument with a direct rhetorical question. While it has skeptical undertones (questioning the validity of their claim), it also functions as a clarifying question seeking the rationale behind the characterization.”
Well, the problem is that we view what happened at step 1, even before the de-anonymization happened, we view that as a search of people's private papers.
And you -- you said in response to Justice Kavanaugh it's not the whole location. You -- Justice Kavanaugh says this is Zurcher, which I think has some force to it, that we have a location and there are maybe 18 people in this 19-person search who are going to be innocent, who didn't know anything about this but just happened to be there in that time, but Zurcher seems to say that's fine as long as you have probable cause 1 to believe that there is a crime that's being committed in this location at this point. You say no, it's each person's individual account. If we disagree with that --
“The Justice is probing the petitioner's position by invoking Zurcher and noting its apparent force against counsel's argument, signaling doubt about the individual-account theory. The concern about 18 innocent people being swept up reflects worry about practical implications, while the trailing 'If we disagree with that--' directly challenges the argument's viability.”
All right. And we think this is Zurcher, then why is 150 meters or 30 minutes before or 30 minutes after unreasonable at -- at step 1?
“The Justice is probing the petitioner's position by questioning why specific limitations (150 meters, 30-minute windows) would be unreasonable if the case is governed by Zurcher, suggesting doubt about the logical consistency of the petitioner's argument. The 'All right' acceptance of a premise followed by a challenging 'then why' signals skeptical probing of the argument's internal logic.”
Okay. If you think it's just like Zurcher, I still think it's unreasonable at step 1 because I think the geofence warrant covers people who are just, you know, sitting in the church the whole time. And I think that a geofence warrant that encompasses not just the bank but also a church and a church parking lot 30 minutes before and 30 minutes after --
But we can't -- we can't eliminate those. We don't know anything about those people. That's -- this is a reverse warrant, says Professor Kerr, that you're allowed to have the radius encompass people who aren't necessarily the bank robber 1 if you're trying to find the bank robber and there's probable cause to believe he was there 30 minutes before or 30 minutes after.
“The Justice is probing the implications of geofence warrants by invoking Professor Kerr's 'reverse warrant' critique, expressing concern about sweeping in innocent people while also testing the logical boundaries of the petitioner's argument. The reference to unknowable individuals caught in the radius signals worry about Fourth Amendment overreach, but the framing also shows intellectual engagement with the conceptual framework.”
You don't -- you don't eventually get those people's names. That's the point I'll get to. But, for step 1, I don't understand why there's a problem.
“The Justice is pushing back on counsel's framing by correcting a premise ('you don't eventually get those people's names'), while also expressing genuine confusion about why there's a problem at step 1. This combines mild skepticism about the argument's structure with a clarifying intent to understand the specific concern.”
I guess that's the question, whether it's okay under the Fourth Amendment to say, well, we don't know which of those people it is, so we're just going to search all of them to try to find the suspect because that's essentially what happened here.
Okay. So isn't the real problem if you're looking at it as I am that the point that you made with Justice Gorsuch that we don't understand how the police went from the nine to the 19, that the next step in opening it up and looking for more information, there has to be some rational basis or probable cause to believe that these particular accounts we need to have more information for, and that's not in this record, right?
“The Justice is probing a specific weakness in the argument — the lack of justification for expanding from 9 to 19 accounts — and framing it as 'the real problem,' signaling skepticism about the sufficiency of the record. The question ends with a pointed 'that's not in this record, right?' which challenges the petitioner's position directly.”
That is certainly true, Your Honor. The warrant just told the police basically find the people that seem most suspicious to you. And the police just initially selected all 19. Google pushed back. The police suggested --- selected nine. But the warrant itself doesn't provide any criteria and --
If it did, would it be more particularized, and isn't that what we should be saying in this opinion, for example?
“The Justice is actively exploring whether a hypothetical condition would produce a more particularized result and suggesting how the Court might frame its opinion, reflecting both intellectual engagement and a somewhat leading/clarifying inquiry. The phrase 'isn't that what we should be saying' suggests mild approval of a particular direction while also probing counsel's agreement.”
Well, that would be a -- a different way to achieve a Fourth Amendment -- to -- to -- to rule that the Fourth Amendment was violated. That would be a very narrow resolution of this case. But, yes, I do think that that alone is a sufficient basis to invalidate this warrant even if the Court disagrees with our broader arguments.
Thank you, counsel. Mr. Feigin. 76 ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE RESPONDENT
“This is a purely procedural statement transitioning between counsel, with no emotional valence or substantive content. The Justice is simply thanking petitioner's counsel and introducing the next speaker.”
Thank you, Mr. Chief Justice, and may it please the Court: As I think Justice Jackson was just getting at, Petitioner here is asking for an unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements that he affirmatively consented to allow Google to create, maintain, and use. In doing so, he would make that fortress so impregnable that not even a judge's warrant for even a moment of the public location of someone who, again, affirmatively opted to allow Google to have those records and to access them would be available to law enforcement. That's a debilitating and counterintuitive reading of the Fourth Amendment that would impede the investigation of kidnappings, robberies, shootings, and other crimes and would implicate any number of practices that I think opposing counsel kind of just waived his hands about, like tower dumps. 1 Frankly, Mr. Chief Justice, I don't know how he concedes exigent circumstances because, under this Court's recent decision just this term in Case against Montana, we need reasonable cause to believe that the -- there's a necessary search, and under his view, the -- this would be a search of everyone who has location history stored with Google. And I think he would have to say that we don't have reasonable cause as to each one of those people. And the way he is trying to achieve that counterintuitive result, I think, rests on two fundamental misconceptions that have been emphasized this morning. One is that it's like -- this is like uploading your own content to a storage locker. Even Google doesn't treat it that way. If you see it -- if you look at Joint Appendix 55, you'll see that Google separates out user-created content from other kinds of content. The second main misconception here, if I might just continue for one second, is that this would implicate all sorts of other types 1 of data in which the Court has found more of a reasonable expectation of privacy, like email. Location history is different. I'm sorry, Justice Thomas.
Mr. Feigin, would you address Justice Alito's point as to this being an advisory opinion?
“This is largely a procedural/neutral redirect, asking counsel to respond to a point already raised by another Justice. It carries a mild clarifying and concern element since the advisory opinion issue is substantively significant, but the utterance itself is administrative in directing the argument.”
Frankly, Your Honor, we attempted to warn the Court about that in our brief in opposition. If the Court wishes to dismiss the case as improvidently granted, we're -- we'd be fine with that. I -- I do think there's really no chance the opinion here would make the officer's actions here unreasonable. Petitioner's suggesting now some kind of new kind of warrant requirement exception to the good-faith exception. I don't really understand how that would work or what the contours of it would be, and I don't -- like, what does it mean to have a new kind of warrant? At bottom, we just don't think there's anything that's going to happen here other than an affirmance. You would essentially have 1 something that looks like an advisory opinion. I mean, I suppose the Court could say that the theoretical chance that something might happen is enough to keep this case alive, but I don't think that makes a great deal of sense.
Additionally, the policy, Google's policy, has changed. And would you compare that policy to this and the effect of that change?
“The Justice is asking counsel to compare Google's changed policy to the current situation and its effects, which is primarily a clarifying question seeking analytical comparison. There is some engagement as the Justice appears curious about the implications of the policy change, but the tone is largely neutral and information-seeking.”
Do you mean the pushing out of location history --
-- so it's now stored on the phones?
Well, I don't know that it would make a Fourth Amendment difference if Google were still able to comply with these warrants, but Google has represented to us that as of 2023 and that change that it made, it is no longer able to comply with the warrants, and that makes the difference.
But other -- I'm sorry, 1 Your Honor.
But, otherwise, if this were information that were exposed to Google, what Google -- I think it's an important feature of the warrant here that Google is actually the one doing the filtering on Google's accounts. As to any account except for the 19 that were additionally returned -- and, of course, they were all anonymized and they were truly anonymized -- their expert, if you look at page 288 of the court of appeals joint appendix, admits he wasn't able to specifically identify even the three people he was talking about. But, as to everyone else other than the 19, they might as well not have existed from the government's perspective.
And even Google didn't really learn very much about them other than that they were not within this 150-meter radius circle during that particular hour. I question whether that is a -- an 1 invasion of their reasonable privacy expectations. I think clearly not under this Court's decision in Knotts. That's a public place. These were public movements.
Counsel, if I could interrupt.
“This is a polite interruption phrase used to interject during counsel's argument. While interruptions can signal hostility per research, the polite framing 'if I could interrupt' suggests standard procedural interjection rather than strong disagreement, making neutral the dominant classification with minor hostility and clarifying elements.”
One of the -- one of the central concerns that's been voiced, of course, is what's to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization. What are the restraints that would prevent that from becoming a problem?
“The Justice is expressing a widely-voiced concern about government surveillance overreach affecting religious and political association rights, asking what safeguards exist. The framing around potential abuse of power and First Amendment implications signals genuine concern about consequences rather than mere skepticism or intellectual curiosity.”
Well, number one, Your Honor, would be the Stored Communications Act. And I respectfully disagree with Petitioner's counsel -- I mean, we have a somewhat different reading of the Stored Communications Act and exactly what it would require under these circumstances. And I know it's a statutory protection. But I disagree with counsel that it sets some kind of Fourth Amendment floor. The Court basically rejected that 1 position in City of Ontario against Quon, which also involved the Stored Communications Act.
Well, put the statute --
“This appears to be a mid-sentence interruption directing counsel to reference the statute, likely redirecting the argument. The abrupt, directive nature suggests mild impatience or redirection, but it's primarily procedural/clarifying in nature.”
-- to one side. Just in terms of the Constitution.
“The Justice appears to be narrowing the scope of the inquiry, setting aside one argument to focus specifically on the constitutional question. This is a clarifying/focusing move, redirecting counsel toward a particular analytical framework rather than expressing skepticism or approval.”
Putting the statute to the side, I mean, first of all, I don't think that there's any kind of categorical protection around something like a church. I mean, unfortunately, as you saw with Dylann Roof, we can have a shooting at a church. If he'd gotten away, we -- I would have thought this would be a law enforcement technique that might be useful.
So you don't think there's any constitutional protection for such organizations to be subject to focused surveillance that would cover everybody in a particular location?
“The question challenges the respondent's position by pressing on whether there is no constitutional protection for organizations subject to broad surveillance, suggesting doubt about the breadth or correctness of their argument. The framing 'you don't think there's any constitutional protection' implies skepticism about the position while also carrying concern about the implications of sweeping surveillance covering 'everybody in a particular location.'”
Well, I think one avenue that the Court has potentially held open, number one, is the amount of time for which the government could look. I don't know that the 1 government could see everyone who came into a church at any time. I certainly --
Well, if -- if services start at noon, they can go from noon to 1, however long they take.
“The Justice appears to be working through a hypothetical scenario to clarify how a time-based argument would play out in practice. The phrasing suggests intellectual exploration of the logical implications of a starting time constraint rather than skepticism or hostility.”
So let me make a few points on that, Your Honor. First of all, if someone doesn't want it known that they're going to a particular place, like a -- an abortion clinic, for example, they don't have to enable location history or keep it on while they are visiting that location. I mean, if there were a surveillance camera across -- at a bodega across the street from the church that could also see everybody who came in, then I don't think there'd be a claim to Fourth Amendment protection from government review of that. The second thing that I think I would say is that this has been -- the degree to which some -- someone can really be located in a particular location, I think, is somewhat overstated in this case. If you want to look at the sealed volume of the Joint Appendix, 1 Joint Appendix Volume 3, you'll see that usually there's a fairly wide confidence interval of close to, you know, like, 30, 40 meters for everyone. So -- and that's only -- that only describes a circle with a 68 percent probability of containing them. So it's --
Well, but I don't mean to --
“This is a very brief, incomplete utterance that appears to be a self-correction or backtracking, suggesting the Justice is clarifying or softening a previous point. The phrase 'I don't mean to' indicates the Justice is attempting to reframe or qualify their prior statement, which is largely procedural/neutral with a clarifying component.”
-- difficult to know exactly where they are.
I mean, we don't -- we can't rely entirely on -- on good faith, but the point is not that they're looking for a particular individual, but they want to have a catalog of the people who go to a particular location. And it seems to me that that's a realistic problem.
“The Justice explicitly states 'that's a realistic problem,' expressing genuine concern about government cataloging individuals who visit particular locations. The acknowledgment that good faith cannot be fully relied upon signals worry about potential surveillance implications and abuse of whatever legal standard is being debated.”
Well, Your Honor, first of all, I mean, that can't -- that can't really happen under the Stored Communications Act.
-- put -- put the statute to one side and just focus on the Constitution.
“The Justice is redirecting the argument to focus on constitutional rather than statutory analysis, which is a classic form of intellectual engagement and clarification. The directive to set aside the statute suggests the Justice wants to explore the constitutional question independently, indicating curious probing rather than hostility or strong skepticism.”
Okay. And the second thing I'd say is, you know, I would focus on this particular case, and in every case in which this has come up, the government has gotten a warrant because Google -- it's just easier to get Google to comply if we do get a warrant. And if you -- but, if you want to put the warrant aside, Your Honor, I do think that what really matters here is that people have affirmatively opted in. Only one-third of active Google account holders do that --
So, to prevent surveillance of sensitive locations, you have to rely on the fact that people are going to turn off something that many, if not most, people find is an important service?
“The Justice is probing the weakness of a proposed solution (turning off a service) by highlighting that most people won't actually do so, expressing both skepticism about the argument's practicality and concern about the real-world implications for privacy at sensitive locations.”
Well, Your Honor, I do think, if you wish to conceal that you were at a particular location and you are effectively shouting and broadcasting your location to Google and that Google is creating, maintaining, using for any number of its own purposes those records -- I mean, Google could send you an ad saying --
-- hey, I see you go to --
-- I'm sorry to interrupt, but I -- I -- I -- I've got to think the answer to the Chief Justice's question is yes. This isn't a search. You don't think it's a Fourth Amendment search at all. You don't need a warrant. And, yes, if we want to determine everybody who is at a church or a political rally or the abortion clinic or anything else like that, we're -- we can do that as long as we can get Google to comply. Oh, and we might have a few tools besides warrants to get social media companies to comply with governmental requests.
“The Justice is expressing deep concern about the sweeping surveillance implications of the respondent's position — tracking individuals at churches, political rallies, and abortion clinics — while also pressing skeptically on the logical conclusion that no warrant is needed. The sarcastic 'Oh, and we might have a few tools besides warrants' signals alarm about government overreach rather than simple intellectual inquiry.”
So I do think that effectively is our answer, Justice Gorsuch.
We're not walking away from that. I'm simply --
Now -- now -- now --
“The repeated 'now -- now -- now --' suggests an interruption or attempt to interject, which can signal mild hostility or impatience, but the lack of substantive content makes it largely neutral procedural interjection where the Justice is trying to break in or redirect the conversation.”
Yeah. No, I -- no, I -- I understand that --
“This utterance is fragmentary and appears to be an interruption or interjection mid-conversation, suggesting the Justice is cutting off counsel to acknowledge a point or redirect the discussion. The hesitant, self-correcting nature ('No, I -- no, I --') indicates a neutral-to-procedural moment with slight hints of mild pushback or impatience.”
-- very important features that -- of why.
-- but that has to be your answer. And then -- and then there's a little tension in your argument as well. You're saying the sky will fall if you can't do this. That -- you started off with that. That was the very first point you made, how important this is. And then, in the next breath, you said that Google can no longer provide this information because it has reconstructed how it operates. Can both things be true?
“The Justice is directly pointing out an internal contradiction in the respondent's argument — the 'sky will fall' urgency claim versus the claim that Google can no longer provide the information — and pressing counsel on whether both can simultaneously be true. This is classic skepticism probing logical inconsistency, with a mild edge of hostility implied by the direct confrontation of the contradiction.”
Yes, Your Honor, and here's why. I think a lot of the arguments that are being made here today and are made in the briefs, if accepted -- and I think, again, this is something Justice Jackson was getting at -- would have a debilitating effect on a number of other law enforcement techniques.
So email, Your Honor, we 1 get a warrant for email absent some --
But -- but, again, you don't think you need one because they broadcast it, as you say, to Google. It's subject to very similar terms of service.
“The 'But -- but, again' opener signals the Justice is pushing back on a point already made, indicating skepticism toward the respondent's argument that no warrant is needed because data was 'broadcast' to Google. The Justice is also partly clarifying the respondent's position while simultaneously probing its logic.”
That's not correct, Your Honor.
We view email differently, and there are several reasons for that.
How about Google documents? How about photos?
“The rapid-fire enumeration of examples (Google documents, photos) suggests the Justice is probing the scope or limits of the respondent's argument, testing how far the principle extends. This is characteristic of skeptical engagement — exploring edge cases to challenge or clarify the argument's boundaries.”
We view all of those differently, and there are --
So it's just location data that's different?
“The question 'So it's just location data that's different?' is primarily a clarifying question seeking to confirm or pin down the respondent's argument, but the word 'just' carries a slightly skeptical undertone, suggesting the Justice may be probing whether the distinction being drawn is meaningful or sufficient.”
And this Court has made clear that it's different. So, in Knotts, the Court makes clear that --
Could you just footnote that answer? Are they different because you treat them differently, or are they 1 different because something in your theory -- theory doesn't apply to them?
“The Justice is pressing counsel to clarify the basis for a distinction—whether it arises from the theory itself or merely from how the party treats certain cases. The phrasing 'Could you just footnote that answer' signals a desire for precision and clarification, while the follow-up probes a potential tension in the argument, adding a mild skeptical undertone.”
Your Honor, if -- I was just getting to that. So we think they're different because the Court has always treated, like, the contents of one's personal thoughts as recorded differently from one's exposed public location, which is all that's at issue here at least for --
So your calendar I also think would be different from your location history because a record -- your own personal updated calendar of where you've been, and there are several reasons for that. I think the Court has made clear in Knotts that exposing your public location for two hours, you don't have a privacy expectation in that, and that contrasts sharply with cases like Ex Parte Jackson about physical letters or even a case like Katz, which is about telephonic --
I interrupted Justice Gorsuch.
-- communications. Second, I think that's consistent with the original understanding of the Fourth Amendment. Justice Thomas gets into this a little bit in Footnote 8 at page 351 of his opinion in Carpenter about how the original focus of the Fourth Amendment was protecting personal confidences.
He was -- he was a dissent there, though.
“The Justice appears to be pointing out a factual nuance—that the judge referenced was in dissent—which functions primarily as a clarifying correction to the counsel's argument, with mild skepticism about the weight being placed on that authority.”
On this particular point, Your Honor, I don't think there was -- it was inconsistent with what the majority --
Yeah, but, Mr. Feigin, I do think that Carpenter seems quite relevant to this, what you're now saying is location is different from email and photos and calendar appointments and everything else that people give to Google. And the reason is the location is just different because people just think that everybody knows where they are all the time. But I would have thought that Carpenter had 1 something to say about that.
“The Justice is directly pushing back on counsel's argument by invoking Carpenter as a counterpoint, signaling doubt about the distinction between location data and other digital information. The phrase 'I would have thought that Carpenter had something to say about that' is a pointed challenge to the respondent's position, reflecting clear skepticism while also showing intellectual engagement with the legal question.”
So one point and then -- and then I have three different reasons why this case is different from Carpenter, but -- well, let me just jump to the three reasons because that's what you're asking about. Number one, we did exactly what Carpenter instructed us to do in this case. We got a warrant. Number two, I do think Carpenter and Jones --
But you're saying you didn't need a warrant. So, I mean, I think the question is your theory, not what you did --
“The Justice is pushing back on the respondent's framing by redirecting to the legal theory rather than the government's actual conduct, signaling doubt about the argument's internal consistency. The phrase 'your theory, not what you did' is a pointed clarification that also carries skeptical undertones about the sufficiency of the respondent's legal position.”
-- out of the goodness of your own heart.
“This sarcastic fragment — 'out of the goodness of your own heart' — strongly implies disbelief in counsel's characterization of a party's motivation or conduct. The ironic phrasing signals skepticism bordering on hostility, suggesting the Justice finds the argument implausible or self-serving.”
-- putting the warrant, which I think is the easy way to resolve this case, to one side, I think there are two key distinctions between this and Carpenter. One, in Carpenter, you had essentially the creation of CSLI, you know, Cell Site Location Information, as the price of even having a cell phone, which the Court had said 1 in Riley was a device that basically nobody can live without. That's not the case here. You have people affirmatively --
Is -- is that the -- the standard, the nobody-can-live-without-this standard?
“The Justice is mockingly rephrasing the respondent's proposed standard as 'the nobody-can-live-without-this standard,' which signals skepticism and mild ridicule of the legal test being advanced. The colloquial, almost derisive framing suggests doubt about the viability or breadth of the standard, though it retains some clarifying intent.”
That's the one fixed point that the Court has given us. But, here, we're a long ways away from that because even one-third of active accounts -- of -- only one-third of active Google account holders bother to enable location history.
So where -- where is the -- the -- the -- the line? If -- if 80 percent enabled this, would that -- would that make it a different case?
“The Justice is probing for a limiting principle by asking where the line is and testing with a hypothetical percentage, indicating both skepticism about the current standard and intellectual engagement in exploring how the rule would apply across different scenarios.”
I think that would be much closer to Carpenter because I think, if I'm recalling correctly from Riley, it's something like 90 percent of people have cell phones. But I certainly think one-third of active Google account holders, which is a fairly small percentage of the world's population overall, shows that people don't 1 need this. You can use Google Maps without location history. You can use Google Maps even without a Google account. The second thing I would say about Carpenter is that although neither Carpenter nor some of the separate opinions in Jones, like Justice Alito's opinion that you joined, drew clear temporal lines, I do think both Jones and Carpenter -- both the opinions in Jones and Carpenter focus on detecting the patterns of life and long enough periods of location to show the patterns of life. I don't think two hours is enough to show the patterns of one's life. They might show that you went to a church once. It doesn't show that you're a regular churchgoer. It might show that you went to a doctor's office. It doesn't show why.
I guess one -- I guess one question would be why is it -- why -- why would the only thing that you would have an interest in protecting is the patterns of one life as opposed to the things that you do in one's life that you particularly don't want people to know about, such as going to a 1 political event, going to an abortion clinic, et cetera? It's like you can -- I can tell you a lot of things about the patterns of my life. What I really want to keep private is particular things that I might do, you know, on very discrete occasions.
“The Justice is probing and challenging the respondent's framing of privacy interests around 'patterns of life' versus discrete sensitive activities (abortion clinic, political events), suggesting skepticism toward the argument's theoretical underpinning. The personal, exploratory tone ('I can tell you a lot about the patterns of my life') also reflects genuine intellectual engagement with the concept.”
Well, two points, Your Honor. One is I think the fundamental insight of Knotts is that if you walk out in public and you walk into some sensitive location, then you are exposing all of that to public view. In Knotts, they were following people to private residences. They didn't follow them into the private residences, but they were following people to private residences through the use of a beeper and stopping outside the private residence. Maybe you don't want someone to know that you're having an affair, but if you have a beeper in your car under Knotts and they're following you for two hours, they will find that out. Number --
Would your position be 1 the same if you had picked up Mr. Chatrie in his home?
“The Justice is posing a hypothetical scenario (home surveillance vs. location data) to probe the logical boundaries of respondent's argument, suggesting intellectual engagement while also testing whether the position holds consistently across different Fourth Amendment contexts, which carries some skeptical undertone.”
If it had revealed his --
“This appears to be an incomplete utterance, likely an interruption or a mid-thought statement, making it nearly impossible to classify with confidence. The fragmentary nature suggests it's part of a hypothetical or clarifying question being posed, but the lack of context keeps it largely neutral with slight lean toward clarifying or engagement.”
-- there's testimony at page 120 of the Joint Appendix from this Court that shows that we couldn't locate which of the houses was his even though he eventually did go to a house because, as it turns out, because the confidence intervals were simply too --
-- your -- your -- your position would remain the same regardless whether somebody was in his home at the time?
“The Justice appears to be probing the logical limits of counsel's position by testing whether it holds regardless of occupancy, suggesting skepticism about the breadth of the argument. The stuttering repetition ('your -- your -- your') indicates pressing intensity, while the question also has a clarifying dimension as it seeks to nail down the exact scope of the position.”
Well, Your Honor, I guess I would make a couple points. I think that -- I think that we would argue that. I think the Court could draw a distinction. And the reasons we would argue that it would still remain the same is, number one, we had no warrant. Number two, I think this would make this case somewhat like Karo, where it doesn't invalidate the law enforcement 1 technique ab initio. It just means that someone with standing could suppress the information about the particular home. And, number three, I think this is distinct from other home circumstances precisely because of the opt-in and the fact that the person is advertising the fact that they are at home, sharing that with Google, and Google could say: You know, I see -- I mean, Google could say: I see you go to church every Sunday, maybe you'd be interested in this particular religious item. Google could say: I see you're often in the house on Saturday mornings, maybe you'd be interested in this particular thing that could be delivered to your house on Saturday mornings. And so they are opting to share that information to get a purely voluntary service. And they're doing so, if you want to look at the terms of service, which we don't -- which we agree aren't controlling, subject to the full knowledge that Google -- of what Google is doing with it and the ability of Google to respond in good faith to law enforcement or to make any number of other choices, like sharing 1 with service providers for Google that will expose that information to public view.
Mr. Feigin, you're really saying -- I mean, you're leaning pretty heavily on the -- the -- the -- the correct proposition that what you do in public view is not generally -- you don't have a reasonable expectation of privacy in. But now you're telling Justice Kagan, really, that if you go into a private home, it wouldn't be a search, I mean, if you trace --
“The Justice is pressing the counsel on an apparent tension or logical inconsistency in their argument — acknowledging one premise ('correct proposition') while highlighting that following it to its conclusion leads to a troubling result (no search even in a private home). The 'you're really saying' framing signals skepticism about where the argument leads, with some concern about its implications.”
-- trace location services? I mean, I understand in this case --
“The utterance appears to be mid-sentence, likely asking about the scope or application of trace location services. The phrasing 'I mean, I understand in this case' suggests the Justice is seeking clarification about broader applicability while acknowledging specific case facts, indicating a clarifying and exploratory tone.”
-- and is that true, that in this case, you're saying he didn't -- you didn't pick him up in any home?
“The Justice is seeking factual clarification about whether the arrest occurred in a home, which is a straightforward attempt to confirm a factual detail of the case. The phrasing 'is that true' and the mid-sentence nature suggest genuine clarification rather than skepticism or challenge.”
Well, Your Honor, he was -- he -- he eventually stopped at the end of his journey away from the bank at a group of homes, but there's testimony, this is page 120 of the Joint Appendix --
But not inside the home. You didn't --
“The interruption mid-sentence ('You didn't --') signals hostility or strong skepticism, as the Justice is cutting off counsel to challenge a distinction being drawn about location (inside the home). The fragment suggests the Justice is pushing back on an argument that may have overlooked or understated the 'inside the home' scenario.”
We couldn't tell which home he was even in.
Yes. Okay. But you really are saying that you could track someone going inside a home, Justice Sotomayor asked Mr. Unikowsky about movements inside a home, movements to the bathroom, movements to the bedroom, all of that, if the confidence interval is narrow enough?
“The Justice is pressing on a deeply troubling implication of the respondent's argument — that tracking intimate movements inside a home (bathroom, bedroom) would be permissible so long as the confidence interval is narrow enough. The framing 'you really are saying' signals both skepticism and concern about the privacy implications of the position being advanced, echoing Justice Sotomayor's earlier line of questioning to underscore the alarming scope of the argument.”
Your Honor, I think -- I think what I'm saying is two things. One, I do think we could have done that here because of the warrant, like under Karo.
Okay. But I think the question is, is that a search under your theory?
“The Justice is probing the logical implications of respondent's theory by asking whether a specific action qualifies as a 'search,' which has elements of both skepticism (testing the theory's boundaries) and clarification (seeking a direct answer on how the theory applies to a specific scenario).”
Is it a search? I -- I don't -- I think probably, Your Honor. Like, I acknowledge that's going to be a much harder case for us.
But no is your answer?
“The terse 'But no is your answer?' suggests the Justice is pressing the counsel to commit to a direct answer, combining skepticism about evasiveness with a clarifying intent to nail down the position. The 'But' implies some resistance to or surprise at the negative answer.”
I think, if we were to argue that -- I think -- I'd like to reserve the possibility that we could argue that it's 1 not a search principally because of the opt-in and the broadcasting, but, look, I fully accept that that would be a very, very difficult argument to sustain. Nothing in our argument in this case depends on it. And I -- I'm not, like, saying that that -- that that's critical to our argument. And if the Court thinks that that is a bridge too far, I'm fine with that.
I would just have it on the proposition.
-- except for it's totally inconsistent with your theory, but other than that. (Laughter.)
“The sarcastic remark ('except for it's totally inconsistent with your theory') directly challenges the respondent's argument, indicating skepticism. The humor and laughter soften the tone, adding an element of engaged wit rather than outright hostility, but the core thrust is a sharp rhetorical challenge to the counsel's position.”
Other than that, Justice Gorsuch.
On -- on the particularity side, Mr. Feigin, let's say you go to a hotel and the -- the warrant is search all the rooms in the hotel for the gun on the bedside, or a storage facility, search all the storage units for a -- a particular contraband, or to a bank, go search all the safe deposit 100 boxes for the pearl necklace that's been stolen. What's the difference between those cases and this case, assuming that I have a term of service with the hotel, with the storage facility, with the bank that says you can access these places from time to time for purposes that we agree upon and, of course, you -- you can -- you can do something with the government if the law allows it?
“The Justice is using an elaborate series of analogies (hotel rooms, storage units, safe deposit boxes) to probe and challenge the government's position on particularity, essentially asking how this case differs from clearly overbroad warrant situations. This reflects skeptical probing of the argument's logical consistency while also showing intellectual engagement with the hypotheticals.”
So, Your Honor, I think this is a somewhat -- this goes to a somewhat under-theorized portion of the Fourth Amendment, which is the definition of a place. I think we often have an intuitive sense of what's a place. In particular, with an apartment building, I think --
You -- you would agree those warrants would all be impermissible?
“The Justice is pressing counsel to concede a point, using a yes/no confirmation question that probes whether counsel's position logically entails that certain warrants would be impermissible. The hesitation markers ('You -- you') suggest this is a pointed, skeptical probe rather than purely neutral clarification.”
I don't know about -- necessarily about a storage locker one. That would probably be impermissible. Certainly, we couldn't search every apartment in a building, both because homes are first among equals and 101 because --
Well, hotel -- hotel rooms, bank safe deposit boxes, storage facilities, the warrants I just described, go search for the contraband, the gun, the pearl necklace, okay or not okay? Are those sufficiently particularized?
“The Justice is presenting a series of hypotheticals involving different storage locations to probe the boundaries of the particularization requirement, testing whether the respondent's position holds consistent logic across varied scenarios. The rhetorical 'okay or not okay?' framing suggests some skepticism about where the line is drawn, while the rapid enumeration of examples reflects active intellectual engagement with the issue.”
Well, let me take them each in turn because I think the analysis might be slightly different under -- under each of those things, Your Honor. First of all, for the apartment homes, no. And I think that's --
Still haven't asked about apartments. I asked about hotels, but --
“The Justice is correcting or redirecting counsel about the scope of the question, noting that apartments haven't been addressed while hotels were already asked about. This is primarily clarifying in nature, though the mild interruption-like correction carries a slight hint of frustration or hostility.”
I'm sorry. A hotel -- a hotel is the same because the Court's treated it as a home.
And houses are specifically listed in the Fourth Amendment --
-- and they're first among equals.
All right. How 102 about the other two?
“This is a brief, procedural question asking counsel to address remaining issues ('the other two'), indicating standard judicial management of argument with neutral-to-clarifying intent. No emotional valence is detectable.”
Okay. I think -- a storage locker, I think probably we could not do that, so -- and I think we probably couldn't do a storage room, although it would depend how it's organized. But if --
Like every storage facility in America, you know, with one of those awful rolling gates and a padlock at the bottom.
“The Justice is using a colloquial, vivid description of a common storage facility to paint a relatable picture, suggesting engaged curiosity and an attempt to ground the legal discussion in everyday reality. The informal, almost humorous tone ('awful rolling gates') indicates intellectual engagement rather than skepticism or hostility.”
So let me explain why and why that's different from this case if I could.
I'm just asking you, do you think that warrant would be sufficiently particularized, the one I described? Yes or no?
“The blunt 'Yes or no?' demand signals frustration and pressure tactics typical of hostility or skepticism, suggesting the Justice finds the counsel's previous answer evasive or unsatisfactory. The 'I'm just asking you' phrasing carries an edge of impatience while still nominally seeking clarification.”
I think it would be sufficiently particularized because it would describe what the government had a basis to search for.
But what I don't think is --
-- the government could ask the storage facility and require them 103 to search every locker in 500 lockers for the contraband?
“The Justice is probing the logical extension of the respondent's argument by presenting a scenario involving mass searches of storage lockers, suggesting skepticism about where the argument's logic leads. The hypothetical also carries concern about the potential Fourth Amendment implications of broad government search authority.”
What I don't think is that it describes a discrete Fourth Amendment place in which to search for the things that the government --
Okay. So it's not particularized then?
“The Justice appears to be drawing a conclusion from the counsel's prior answer that undermines their argument — 'So it's not particularized then?' suggests the Justice is pointing out a logical consequence that may weaken the respondent's position. While there is a clarifying element, the framing implies skepticism about the particularization requirement being met.”
I mean, I'm really just looking --
“The truncated phrase 'I'm really just looking --' strongly suggests the Justice is attempting to clarify their inquiry or narrow the scope of what they're asking, indicating a clarifying intent. The informal, incomplete nature of the utterance suggests a conversational, non-adversarial tone.”
-- more about place than particularization there, assuming there's probable cause to believe that the area writ large is going to contain the contraband. If I could explain a little further on this, Your Honor. I think what makes the difference in some of these hypotheticals versus what we have here --
Well, first, I just want an answer to my hypotheticals, and then we'll get to here if that's all right with you.
“The Justice is asserting control over the questioning sequence with mild impatience, suggesting the counsel has been evading or redirecting away from the hypotheticals. The phrase 'if that's all right with you' carries slight sarcasm, indicating mild hostility or frustration, while the insistence on getting hypothetical answers reflects engaged probing.”
Your Honor -- Your Honor, my answer to the hotels is no. My answer to the other two is very likely not.
Yeah, I would need to know a little more about it.
Okay. All right. And now --
“This is a purely procedural transitional phrase with no emotional valence, simply acknowledging what was said and moving to the next point in questioning. No substantive content to indicate any other sentiment.”
And now let me explain why --
And now turning to this, do you agree that -- that Google had to query every single user's account?
“The question appears to be genuinely seeking confirmation or clarification of a factual point about Google's technical process, using 'do you agree' framing which invites the counsel to confirm or dispute a specific claim. The transitional phrase 'And now turning to this' suggests methodical questioning rather than adversarial probing.”
Well, you said so --
“This appears to be an interruption or interjection where the Justice is pointing back to something counsel previously stated, which often signals either a contradiction being highlighted (skepticism/hostility) or a clarification being sought. The brevity and incomplete nature suggests an interruption, which research associates with hostility or challenge.”
-- on page 10 of your brief.
“This is a procedural reference to a specific page in the brief, with no emotional valence. It appears to be part of a citation or locating information, which is purely administrative in nature.”
Do you mean query in the -- do you mean "query" as like a synonym for "search" in the Fourth Amendment sense?
I'm using your word from page 41.
“The Justice is citing the respondent's own brief to ground a question or point, which is primarily a clarifying move establishing the source of terminology being used. It carries a mildly neutral-procedural tone while also potentially setting up a follow-up challenge.”
Oh, okay. Yes, I do agree Google had to query in that sense. I'm sorry.
And -- and -- and there are --
“This is a fragmented, interrupted utterance with repeated conjunctions suggesting the Justice is in the middle of formulating a thought or being cut off. The lack of substantive content makes it largely neutral/procedural with slight engagement as the Justice appears to be building toward a point.”
I thought you meant "query" as a synonym for "search."
-- about 500 million users' accounts, right?
“The Justice appears to be confirming a factual detail about the scale of the case (500 million users' accounts), which is primarily a clarifying question seeking confirmation. The large number may carry some implicit concern about the scope/impact, but the primary intent seems to be factual verification.”
I agree, and let me tell you why it's different. I think the reasons the hypotheticals -- the -- I -- but I apologize for misunderstanding your use of "query" as a synonym for "search." The -- the reason this is different is I think it's a lot about opacity and control. And what I mean by "opacity" is the separateness of the different spaces. And "control" is who has control over those spaces. Here is a case where I think, as the Court recognized in Riley can often happen, the physical analogies kind of break down to some degree. The Court has been clear in Smith against Maryland --
But let's -- let's just stop there.
“The interruption 'let's just stop there' signals the Justice wants to redirect or challenge a specific point, suggesting mild hostility or impatience, but could also be a neutral procedural interjection to focus the argument on a specific issue for clarification.”
Let's -- let's 106 assume that these accounts are -- are kept in what you can call opacity or whatever you want, but are kept in the same kind of discrete manner as your -- as your email is.
“The Justice is constructing a hypothetical scenario ('Let's assume...') to explore the implications of the argument, using an analogy to email privacy. This is characteristic of intellectual engagement and idea-testing rather than skepticism or hostility, with some clarifying intent to establish a baseline for further questioning.”
Well, Your Honor, I don't think that's the case here. I think what's happening --
Let's assume it is. Let's assume it is. Let's assume that the Google user account -- we have -- we've got a lot of briefs on this.
“The Justice is asking counsel to accept a premise for the sake of argument ('Let's assume it is'), which is a classic hypothetical engagement technique. The repetition and reference to the volume of briefs suggests intellectual exploration rather than hostility or strong skepticism, indicating active engagement with the issue.”
That they're -- they're categorized similarly by user and -- and walled off from other users, both the email and the location data. Let's assume they're similar in that respect.
“The Justice is setting up a hypothetical scenario by drawing a parallel between email and location data, asking counsel to 'assume' they are similar in certain respects. This is characteristic of intellectual engagement and clarification, establishing common ground before probing further into the argument.”
Your Honor, if this were a record that the user created and uploaded, our answer to this case would be different, but if this is -- but, in this case, this is a record that Google creates, Google software sends it, Google processes it, it runs its own algorithms to actually figure out what information it's storing. It is data that 107 Google maintains and data that Google accesses for any number of reasons. If we were to have a physical analogy to storage lockers -- and I'm not sure how useful these physical analogies are -- it's like having a bunch of storage lockers where there's a glass wall in front of them instead of having an opaque door for each box. All the government is asking for here is to get in the room and look at the front of those storage lockers. I don't think that the limited amount that even Google sees at step 1 is going to be considered a search. And for -- as I said earlier, from the government's perspective, all of those other storage lockers, if you want to call them that, and we're accepting that analogy for purposes of this answer, all of those other storage lockers might as well not exist. For all the government knows, they -- there are only 19 people --
-- who have their location history stored.
Mr. Feigin, is that 108 because, at step 1, unlike the examples that we've been talking about, you don't know how many apartments there are? You don't know how many storage lockers there are? At step 1, it's just like getting a list. There are 16 apartments in this building, right? Isn't -- I mean, that's why I'm appreciating a difference between the steps as the iterative process with Google goes forward. Step 1 is we have a bank robbery. Here's the bank. We would like to know how many cell phone accounts were in this radius during this period of time, right? I mean, you don't have the names, you don't have anything more than that. I'm -- I'm struggling to understand the step 1 problem other than to figure out how the government came up with 150 meters and 30 minutes before and after. So can you start maybe by answering that question? Where -- where does that number -- where do those numbers come from?
“The Justice is actively working through the mechanics of the geofence warrant process, using analogies (apartments, bank robbery) to understand the distinctions between steps. The phrase 'I'm struggling to understand' and 'can you start maybe by answering that question' signal genuine clarifying intent mixed with intellectual engagement, as the Justice appears to be working through the logic rather than challenging it adversarially.”
Sure. I can't help your struggle with step 1 because I too don't see a problem with step 1. But the 150-meter radius 109 and the half an hour before and half an hour after were based on wanting to exclude -- there's some testimony in the record about this. They did want to include the church because they had testimony about a suspicious car that had been parked at the church, and they thought the robber, as it turns out, directly might have come from there.
So evidence was presented to the magistrate. The reason why we're making the circle this big to include these structures is because there could be some connection to this robbery?
“The Justice appears to be probing the reasoning behind the breadth of the search warrant, questioning why such a wide circle of structures was included based on a speculative 'could be some connection' rationale. The tone suggests skepticism about the sufficiency of probable cause while also seeking clarification on the government's justification for the expansive warrant scope.”
I don't believe that evidence -- that particular reason for including that was presented to the magistrate --
I'll just explain to you how they got 150 meters. And half an hour before and half an hour after allows you some information about, for example, there was a reference -- and the magistrate did learn 110 this -- to co-conspirators in the demand note, and you might want to see if someone dropped the robber off or someone picked up the robber afterwards. You want to know more about the movements around it. The advantage the magistrate has that I think is difficult for a reviewing court to replicate is knowledge of local conditions and realizing that 150 -- if I could just finish this sentence, Your Honor?
A hundred and fifty meters in Midlothian, Virginia, isn't likely to turn up the entire phone book.
Thank you, counsel. Justice Thomas, anything further? Justice Alito?
“This is a purely procedural statement by the Chief Justice, thanking counsel and polling other justices for additional questions. It carries no emotional valence whatsoever.”
You've been asked quite a few questions that analogize what happened here to searches, old-fashioned searches, of physical places, so searching the room of everybody in a hotel. If that happened, I think there would be an awful lot of angry hotel guests, all of 111 those who had nothing whatsoever to do with the crime. Here, Mr. Unikowsky says 500 million people were injured when there was a search for their data even though it was completely anonymized. How many of those 500 million people have come forward to complain about anything like this, which may be going on every day?
“The Justice is actively probing the respondent's argument by drawing an analogy to physical searches and challenging the premise that 500 million people were truly 'injured' by anonymized data searches, noting that none have come forward to complain. This combines skepticism toward the respondent's standing/injury argument with intellectual engagement through the hotel search hypothetical.”
Well, I think that's right, Your Honor. I think, that points out that if they did want to complain, that would be a separate Fourth Amendment standing question, of course, and I -- I don't think that Petitioner here can represent their standing, but one reason they wouldn't complain is, first of all, I don't think this would violate the reasonable expectations of privacy even if the government were doing it. Second of all, Google was doing it and it's no different from any number of other things that Google does for its own -- for its own particular purposes. But the --
Well, do you think that -- don't you think that makes a difference 112 for Fourth Amendment purposes, the distinction between a law enforcement officer invading a physical space and a request to a company to conduct a search with which the company complies?
“The Justice is pressing the respondent with a rhetorical question ('don't you think') that challenges the equivalence between a physical government search and a government request to a third-party company, signaling skepticism toward the respondent's Fourth Amendment framing while also intellectually engaging with the doctrinal distinction.”
Well, not only do I think that, Your Honor, but I think the Court has said that multiple times if you look at cases like Oklahoma Press against Walling or Lone Steer. It's very different when an officer comes into the premises and looks around versus something that functions, although this had the protections of a warrant, in many ways, it functioned like a subpoena in that it was the provider doing the filtering and the provider disclosing the records, which limited what the government saw considerably. The only non-anonymized information the government got was for three individual users. It didn't know anything about anyone in the Sensorvault other than the 19 that were returned for step 1, and as to them, it didn't know their identities.
So I do think that's -- 113 that's critical. But the argument that he's trying to make about step 1, I think it's very important that it really does implicate tower dumps, for example, because, in -- it implicates any number of law enforcement techniques that might incidentally find data about someone else. Let's -- even a CSLI warrant, you might have a company that organizes its data by tower. And in order to find, let's call them Carpenter, in order to find Carpenter's CSLI data, the company has to search across all of its towers during the time period and figure out which ones are Carpenter and which ones aren't. It's going to learn everything about all its users in theory. I mean, I'm sure it's using software to do this and having a filtering mechanism, just like Google did here, but it's going to learn everything about all its users for that period of time. I don't know how he distinguished that. For tower dumps --
Well, tower -- this --
“This appears to be a very brief, fragmented utterance—likely an interruption or attempt to interject mid-argument. The incomplete nature ('Well, tower -- this --') suggests procedural or transitional speech with no clear emotional valence, though a slight possibility of interruption-based hostility exists.”
-- I don't know how he 114 distinguished --
Tower dumps are not before us. Emails are not before us. Calendars are not before us. Photos are not before us. I mean, I understand that if we're going to write a treatise on the application of the Fourth Amendment to the new digital world, we might want to include sections on all of these things, but none of those things is at issue in the actual case or controversy -- controversy that is before us. You've heard some proposals about narrow theories on which the case could be decided that would, as I understand them, focus on whether there was a lack of probable cause or a lack of particularity at step 2 or step 3. What would be the precedential importance of a decision like that which turns on the particular warrant that is at issue in this case?
“The Justice is actively steering the argument toward the actual case at hand, dismissing broader digital-world issues as not relevant to this case, and then genuinely exploring the precedential value of a narrow ruling. This reflects intellectual engagement and curiosity about the scope of the decision, with some clarifying intent about what issues are actually before the Court.”
Well, Your Honor, unless the Court upholds the warrant, I do think the Court needs to reach the search questions in some way because the Court would have to 115 address whether the warrant was even necessary. And I think, as I've tried to make clear, the Court -- a lot of the arguments that Petitioner is making here, while those other techniques are not directly at issue, would have implications on a lot of those other techniques and would create a lot of litigation and have a potentially debilitating effect on law enforcement. But -- they could even affect such things as visual camera surveillance. But, as to the specific question you asked about the particularity at steps 2 and 3, I do think it was sufficiently particularized because you had geospatial and temporal coordinates that showed that these people might be either suspects or witnesses, and the government simply was able to obtain enough information to figure out which of them might have information or be worth identifying. And I -- I -- I think the Court's been clear that those are permissible law enforcement interests. The Court might say that --
Yeah. Let me just -- I -- I don't want to take up too much time. Let me just ask one final question. Of all of the arguments that Petitioner has raised, which do you think would be the most disruptive of what everybody has understood to be the limitations of the Fourth Amendment up to this point? His argument that this is a general warrant, his argument that he had a property interest in the -- in this data that was collected by Google? His request that we treat this search by a company as if law enforcement officers were themselves searching through records? Which of the -- which is the worst?
“The Justice is actively engaging with the respondent by asking them to evaluate the relative disruptiveness of petitioner's arguments, framing it as intellectual exploration of which argument poses the greatest threat to established Fourth Amendment doctrine. The 'which is the worst' framing shows concern about doctrinal disruption while also reflecting genuine intellectual engagement in testing the strength of competing arguments.”
Is all of the above an option, Justice Alito? (Laughter.)
I do think the idea that you have a privacy right or a property right in even a moment's worth of location history could be debilitating to all sorts of types of visual surveillance. The agent theory could debilitate subpoenas. The property theory, I don't even know where the Fourth Amendment goes 117 after that. And I -- I -- I do think a lot of these theories are -- and the general warrant theory that Your Honor mentioned, I think, would call into question how we do a lot of computer warrants. We often name the servers as the place to be searched. And I -- I don't, frankly, know and I don't think courts are well-equipped to find out exactly how data is organized within a particular company, and I don't know whether we have to take discovery on that in every case where we seek a warrant and actually really go down to the nuts and bolts or the virtual nuts and bolts of how a company does this.
A few questions. Number one, the Stored Communications Act, a violation, Mr. Unikowsky said, may be a violation, there may be criminal penalties for it, but it doesn't give a suppression remedy, correct?
“The justice is seeking confirmation of a factual point about the Stored Communications Act raised by opposing counsel, using a direct 'correct?' question to verify understanding. This is primarily clarifying in nature, establishing a baseline fact before proceeding with further questioning.”
All right. Number two, you're saying everything would be horrible, but Carpenter has already said you need a warrant, correct, for data, correct?
“The Justice is pushing back on the counsel's 'horrible consequences' argument by pointing out that Carpenter already established a warrant requirement, suggesting the concern is overstated. The repeated 'correct?' signals the Justice is pressing the respondent to concede a point that undermines their argument, indicating skepticism toward the doomsday framing while also partially clarifying the legal landscape.”
And we got a warrant here, yes.
But you're saying I didn't need a warrant because it was a short period of time. Assuming I disagree with that --
“The Justice is directly challenging the respondent's core argument about warrant requirements and duration, signaling disagreement by explicitly stating 'Assuming I disagree with that,' which indicates strong skepticism toward the no-warrant position. This is a pointed probe of the argument's foundational premise rather than mere clarification.”
-- that the -- just assume that, okay? There are three steps to this process. Were the three steps approved by the warrant? I read the warrant, but now I've forgotten. Were the three steps approved?
“The Justice is genuinely seeking factual clarification about the warrant's scope and the three-step process, acknowledging they read the warrant but need a reminder. This is a straightforward clarifying question with some engagement as the Justice works through the structure of the argument.”
Yeah, the three steps were all laid out within the warrant -- within the warrant itself.
But the one who made the choice at step 2 and step 3 was -- was Google, not a magistrate, correct?
“The Justice is pressing on who made the relevant choices (Google vs. a magistrate), challenging the respondent's framing or characterization of the decision-making process. The 'correct?' tag signals a pointed follow-up that leans skeptical, though it also seeks factual clarification.”
Well, Your Honor, the 119 warrant required the government to make reasonable efforts to minimize between steps 1 and 2 and steps 2 and 3.
Well, usually, isn't it -- I thought that if, for the foreign sovereign -- for the foreign checking system that we have, that magistrate judge says you have to minimize as you're doing it, but come back to us if you want a greater scope, correct? And, here, you went from 30 minutes to two hours, and you didn't get a magistrate judge, correct?
“The Justice is probing a procedural inconsistency — pointing out that the respondent expanded scope from 30 minutes to two hours without returning to the magistrate judge, as the minimization framework typically requires. The repeated 'correct?' signals the Justice is pressing the respondent to acknowledge what appears to be a deviation from standard procedure, reflecting skepticism about the government's compliance with oversight requirements, with some clarifying intent to confirm the factual record.”
That was expressly authorized within the warrant. The warrant's parameters said that step 2 would be an hour before and an hour after the robbery.
Okay. I thought it was two hours. Maybe I misunderstood.
“This is a purely procedural/administrative comment about time allocation, with no substantive legal content. The Justice is simply clarifying a misunderstanding about the argument schedule, making it almost entirely neutral.”
That's a total of two hours --
-- Your Honor, one hour before, one hour after.
The original was an hour, half an hour before, half an hour after.
There are, I understood, many jurisdictions in which the government is going back at step 2 and step 3, correct? That's not much of a -- of a burden.
“The Justice is pushing back on the respondent's claim that something constitutes a burden, noting that many jurisdictions already handle steps 2 and 3 — suggesting the burden argument is weak. The dismissive framing 'That's not much of a burden' signals skepticism toward the respondent's position, with mild hostility in the tone.”
If you've gotten step 1 and you can explain your reasons for why you're narrowing the warrant and -- and why you need it at step 2, you could do that.
“The Justice appears to be affirming or working through a procedural framework with the respondent, suggesting that a particular approach ('you could do that') is viable. The tone is constructive and exploratory, blending approval with engaged intellectual testing of how the two-step process might work.”
We -- we could do that, and with more recent warrants, the government has done that. Obviously, this was a Virginia warrant, but just to defend this warrant for one second, I think the Court recognized in Scott, which is a case we cite in our brief, that -- which is under the Wire Tap Act, not directly a Fourth Amendment case, but the same principle applies, that the --
Now there's value, isn't there, in our saying something like or deciding we need a warrant, it has to be particular as to time, place, time, and it has to explain the reasons why those limitations 121 are reasonable because that's always a part of a warrant search? And wouldn't that have value for the dispute that's going on around the country and between and among judges even on this Court? Some said there was -- some took your position that there's no right of privacy whatsoever and you don't need a warrant. Others have taken the position that you need a warrant, but you don't need much supervision from the magistrate judge. There is value in our setting the parameters of this process, isn't there?
“The Justice is actively exploring the value of the Court setting clear parameters for warrant requirements, showing intellectual curiosity and engagement with the broader implications of the case. The rhetorical framing ('isn't there value in...') suggests the Justice is leading counsel toward agreement with a position the Justice already holds, making this primarily engagement with elements of approval and mild concern about the ongoing judicial disagreement across the country.”
I think, if the Court were to say something about warrants, that could have value. And I'm not going to claim that the sky is going to fall if we had needed a separate warrant at steps 2 and 3 and a total of three warrants. We've actually done that in more modern times. But what I am saying is that I would caution the Court against saying that it's -- that warrants can never include any kind of discretion like the warrant did here because --
We don't need -- we don't need to say that.
“This appears to be a procedural or limiting statement where the Justice is narrowing the scope of what the Court needs to decide, suggesting the argument being made goes further than necessary. The repetition ('We don't need -- we don't need') suggests mild pushback but is largely a neutral/procedural redirect rather than strong skepticism or hostility.”
We -- we -- if all we said was you generally need particularity, the way you do in any situation, you have to give enough to say there's a reasonable probability or fair probability, I think, is our language, that evidence is in a particular -- would -- would be disclosed, and what -- it's a limited search to these times and places, and you have to do it at each stage of a warrant.
“The Justice is working through the legal standard for particularity in warrants, appearing to think aloud and explore how the doctrine applies step by step. The hesitant, recursive phrasing ('we -- we --') and the effort to articulate the 'fair probability' language suggests intellectual engagement and clarification of the applicable framework rather than strong skepticism or approval.”
Your Honor, I think we met all of those requirements here.
We don't even -- I don't even know if we need to go that far, but you would not be troubled by that rule?
“The Justice signals potential agreement ('we don't even need to go that far') while also seeking confirmation from counsel about their position, blending clarification with mild approval and intellectual engagement. The phrase 'you would not be troubled by that rule?' checks whether counsel accepts a narrower formulation.”
Your Honor, you're simply describing what the Fourth Amendment requires. And as we laid out --
All right. That's exactly --
“The phrase 'That's exactly --' suggests the Justice is affirming or agreeing with something counsel said, indicating approval or at minimum a neutral acknowledgment. The interruption-like truncation may simply reflect a conversational exchange, with 'All right' serving as a transitional affirmation.”
-- we think the Fourth Amendment satisfies those requirements -- our 123 warrant -- I'm sorry -- our warrant satisfies those Fourth Amendment requirements.
I'm not quite so sure of that because you don't explain why it's narrow, but that's a different issue.
“The Justice explicitly expresses doubt ('I'm not quite so sure of that') about the counsel's characterization, noting a lack of explanation for a key claim, which is a classic skeptical probe. However, the dismissive 'that's a different issue' suggests some restraint and acknowledgment that the point won't be fully pressed, keeping hostility and concern low.”
Mr. Feigin, I'm going to give you one of these physical location hypotheticals that you're going to resist, but you'll have a chance to tell me why it's different. But I -- I want to understand your theory, and the easiest way for me to do it is through these. So let's go back to what Justice Gorsuch said. Let's use the -- the storage locker. And there's a storage locker facility in town, it has 500 storage lockers, and they have a relationship with the police chief so that the police chief can come to them and ask the storage locker manager to search all the 124 storage lockers for particular things that the police chief needs. So the police chief goes to the storage locker manager, and he says we're looking for somebody with a particular kind of weapon. You know, we're looking for somebody with a Glock. And -- and the manager goes through each of the 500 lockers, and he comes back to the police chief and he says: I've got a list for you. We have eight lockers with -- that contain a Glock. And now we're going to have a further conversation, you and me, the manager and the police chief, about which of these eight you really want, all right? And they do that. So, in that situation, how many of the lockers would you say have been searched and how should a warrant respond to that? In other words, have 500 lockers been searched? Has -- have eight lockers been searched? Or have zero lockers been searched?
“The Justice explicitly acknowledges they are using a hypothetical to understand the counsel's theory, signaling intellectual engagement and curiosity rather than hostility. While the hypothetical probes the boundaries of the argument (some skepticism), the primary intent appears to be genuinely working through the logical implications of the search theory through a concrete scenario.”
I think some of that might depend on exactly the circumstances under which the proprietor of the storage facility was permitted to go into these storage lockers, 125 because that might set some of the parameters of the reasonable expectation of privacy or at least inform them. I also think it's distinct from the circumstances we have here because you actually have someone who more plausibly could be seen to be acting as a government agent than the recipient of a warrant or a subpoena or an order of production from the court.
No, what I'm -- I guess what I'm saying is just assume that the relationship is similar to the relationship between Google and the government, and just assume that the terms are similar to the terms that Google has with its customers. So all of that is the same.
“The Justice is constructing a hypothetical scenario by asking counsel to assume certain facts, which is characteristic of intellectual engagement and exploration of a legal question. The corrective 'No, what I'm saying is...' suggests the Justice is clarifying their own question rather than challenging the respondent, pointing to a clarifying/engagement dynamic.”
Five hundred lockers searched, eight lockers searched, zero lockers searched?
“The Justice is presenting a range of numerical possibilities to pin down the respondent on specific facts or thresholds, suggesting both genuine clarification-seeking about the scope of the search and some skeptical probing about whether the number matters to the legal argument. The rapid-fire list format implies the Justice wants a concrete answer that may expose a weakness in the argument.”
Your Honor, I think, to the extent we're talking about physical objects that are put into a storage locker that is expected to remain locked except when the user comes and wants to take something out of it, I 126 think we might say the -- that that was a search of all of the lockers because someone went in and looked in every single locker.
And so what would you need for a warrant for that search?
“The question is straightforwardly seeking information about what the warrant requirements would be in the scenario under discussion, indicating genuine curiosity and clarification-seeking. The phrasing 'what would you need' suggests intellectual exploration of the legal standard rather than skepticism or hostility.”
I think we'd need probable cause that there was going to be a Glock in one of the lockers, but I think -- I'm not -- I am --
So you couldn't -- you couldn't get it for all 500?
“The question probes a potential limitation in the respondent's argument by testing whether a remedy or action could apply to all 500 (likely cases or items), suggesting both genuine clarification-seeking and mild skepticism about the scope of the argument.”
-- I am uncertain that would be valid for the reasons I was discussing with Justice Gorsuch in that those might all be separate Fourth Amendment places, and we'd need specific probable cause as to each. I don't think that's true of the database that Google maintains because --
Okay. So what is the difference in your view?
“This is a direct, concise question asking counsel to articulate a distinction, indicating genuine curiosity and a desire to understand the argument. The 'Okay' suggests the Justice is moving forward in a neutral, receptive manner, making this primarily a clarifying question with some intellectual engagement.”
So I think the difference in our view is, first of all, to the extent that I heard opposing counsel -- and this is in their brief -- just suggest that Google's database is quite large, I don't think that in 127 and of itself is a problem. I mean, obviously, you could get a warrant to search a large house where the rooms are accessible to one another or a large file room even if it's physically separated across multiple rooms in a facility. I think the main difference here is that the -- and, you know, Your Honor, here, I maybe am going to resist the physical analogy a little bit, but I don't think that these are the same thing as discrete storage lockers. These are more like storage lockers that don't have the set of expectations that I was just positing in answer to your hypothetical and really are like a bunch of storage lockers with a glass wall. You could imagine, Your Honor, a coat check where we know that somebody dropped off drugs at the coat check and we know what the person's name is. We don't know the coat check number. On their view, we couldn't get a warrant to go look at all the bags for the ID on -- on the bag that -- for the ID matching the person who dropped off the bag because those would be unnatural bag searches that would be unlawful under the Fourth Amendment, 128 and so we'd wind up searching everybody's bag. I think this is somewhat addressed somewhat obliquely, I suppose, by the citation we have on page 44 of our brief to Chapter 8 of Professor LaFave's treatise, which allows for, even in a bailment situation -- we don't think this is a bailment situation -- but even in a bailment situation, there's general agreement among courts that the bailee, the person with possession of the property, can look at it for -- on behalf of law enforcement within the terms of the bailment. And, here, what you have -- again, we deny that it's a bailment, but if you want to analogize this to some kind of bailment scenario like you might have with the storage lockers, we'd still be within the terms of the bailment because Google wasn't doing anything other than stuff that Google could already do.
Justice Gorsuch? Justice Kavanaugh?
You always get a warrant, you said, and the states always get a 129 warrant. So, in terms of practical problems that would ensue, I gather there would be no practical problems -- I understand your legal theory, but no practical problems from our saying that a warrant is required. Is that accurate for these particular kinds of warrants?
“The Justice is primarily seeking clarification by pinning down the practical implications of the respondent's own concessions, testing whether requiring a warrant would cause real-world difficulties. The phrase 'Is that accurate' and the framing around the respondent's prior statements suggest a mix of clarifying intent with mild skepticism about whether the concession fully holds.”
Your Honor, if the Court were to say that this warrant was fine, we have no --
Ah. Well, I mean, Your Honor, I think it is a huge caveat --
The question was, are there any practical problems that you want to identify with our --
“The justice is inviting counsel to identify practical problems with the Court's reasoning or approach, which is a clarifying/engagement question seeking substantive input. The open-ended invitation to flag concerns is procedurally neutral but also shows genuine intellectual engagement with potential real-world implications.”
With getting a warrant in particular?
And I assume the answer's no because you've many times today said we always get a warrant in response to tests, so --
“The Justice is drawing an inference from the respondent's prior statements, testing the logical consistency of their position by anticipating the answer. The phrase 'I assume the answer's no' suggests mild skepticism while also serving a clarifying function, checking whether the counsel's repeated assertion about always getting a warrant holds true in this specific scenario.”
That -- that's right, Your Honor, my answer is no, but I would worry about an -- an opinion that --
How we say that, I get that.
“The phrase 'I get that' signals acknowledgment and mild approval of a point made by counsel, indicating the Justice understands and accepts the framing, though the brevity and procedural tone keep it largely neutral.”
But, like, I -- I do -- I don't think we've had practical problems getting the warrants we need in these cases.
And then, if -- if a warrant's required, it comes down to how particular, I think, correct --
“The Justice appears to be working through the logical structure of the argument, checking their understanding of the next analytical step (particularity requirement) by seeking confirmation from counsel. The 'correct?' at the end signals a clarifying check rather than skepticism or challenge.”
Yes. I -- I -- I do think --
-- it has to be in describing -- and on that, I just want to -- I think you're going to agree with this, but I just want to get this out there, and you tell me. There's a big difference between the issuing judge and the reviewing judge. That's the good faith. And the issuing judge, it seems to me, we should set some parameters, reasonable -- temporal scope, reasonable 131 geographic scope, but then we trust issuing magistrates around the country to implement those rules. When it comes to the reviewing judge, we don't micromanage in second-guessing what the issuing judge did so long as it doesn't exceed, you know, certain bounds that we've set forth. Is that correct?
“The Justice is actively laying out a framework they seem to endorse ('I think you're going to agree with this') while seeking confirmation, showing approval of the distinction between issuing and reviewing judges. The question 'Is that correct?' and the collaborative tone indicate engagement and approval rather than skepticism or hostility.”
And what should we say if we say reasonable, temporal, and geographic bounds for these kinds of geofence warrants? Is that all we need to say? Maybe we should -- you want us to say the ones in this case? Should we get into the -- this case, or should we just say it has to be reasonable, temporal, and geographic bounds and -- and send it back? To Justice Alito's first question, we're on a -- we're at the reviewing stage, not the issuing stage here.
“The Justice is actively exploring the proper scope and framing of a potential ruling on geofence warrants, asking counsel for guidance on how broadly or narrowly to decide the case. This reflects genuine intellectual engagement and curiosity about the appropriate doctrinal framework rather than skepticism or hostility, with some clarifying intent about the reviewing vs. issuing stage distinction.”
Your Honor, I think that would probably be the better course because, you know, I think what this Court's centuries, frankly, of Fourth Amendment jurisprudence teaches is that it's difficult to put a ton of 132 meat on the bone of reasonableness in this context or probable cause or reasonable suspicion or -- or any of these standards because they're --
Well, yeah, and this is particular. How particular? You know, is 150 meters okay? Two hundred okay? It strikes me micromanaging that's going to be problematic, and it's really problematic when you're distinguishing the issuing judge from the reviewing court down the road given what we've said reviewing courts have to be extraordinarily deferential.
“The Justice expresses clear skepticism about drawing precise numerical lines (150 meters? 200 meters?) as 'micromanaging' and raises concern about the problematic implications of distinguishing issuing judges from reviewing courts under the highly deferential standard, suggesting the argument leads to practically unworkable outcomes.”
Yeah. And I think the Court could direct some attention to the magistrate about, you know, not wanting, as -- as I was suggesting to Justice Jackson, drawing parameters that under local conditions are likely to turn up much more than the government needs. But I would --
Exactly. Exactly. If we say things like that, that should -- we trust the -- the issuing judges around the country who do this every day to make --
“The repeated 'Exactly. Exactly.' signals strong agreement and affirmation with the point being made. The Justice is supporting the argument about trusting issuing judges, showing approval while also engaging with the broader principle being discussed.”
You -- you should trust 133 them, Your Honor. And, frankly, our incentives are perfectly aligned with theirs because, when we're seeking a warrant like this, we don't want more information than we really need because that just increases the noise-to-signal ratio and makes these more difficult to actually find the -- the criminals. I believe there was some suggestion from opposing counsel that -- that often these warrants get abandoned or -- or quashed and they don't really turn up much evidence of crime. And that may be because some law enforcement agencies -- I'm not impugning any specific one, we have many wonderful law enforcement partners -- aren't drawing the parameters narrowly enough to even help themselves. So everyone's incentives are aligned here.
So you describe Mr. Unikowsky's position as maximalist, but there's a risk of the government's position 134 being maximalist the other way. And I think, you know, two particular concerns are the ability to track into private residences, and you didn't concede that. The other is calendar, photos, email. Can you -- you -- you -- did I -- did I understand you before to say that you are conceding that would be different and that would be a search?
“The Justice expresses direct concern about the government's position being 'maximalist the other way,' flagging two specific worrying implications (tracking into private residences and accessing calendars/photos/emails). The question also seeks clarification on whether the government conceded a particular point, blending concern about overreach with a genuine request for confirmation of prior statements.”
Yes. And I -- I -- I do concede that tracking into a private residence without a warrant, I think, is a very, very difficult argument for us to make, and I'm not frank -- I'm, frankly, not sure that we would actually make it. I was simply noting that unlike in Karo, where the Court held that we would have needed a warrant --
-- which was quite clear --
But you didn't rule it -- you didn't rule it out.
“The Justice is pressing the respondent on a point they appear to be backing away from, using a pointed rhetorical challenge ('But you didn't rule it out') to highlight an inconsistency or concession in counsel's position. The repetition and emphatic framing signal skepticism bordering on mild hostility.”
I -- I understand 135 your hedge.
“The phrase 'I understand your hedge' is brief and acknowledging, suggesting the Justice has followed the counsel's qualified or nuanced position. It carries a neutral-to-clarifying tone, simply confirming comprehension of a hedged argument without strong emotional valence in either direction.”
I -- I'm not -- I didn't want to categorically rule it out.
But you -- right. But you are saying that you would need a warrant for calendar, photos, email?
“The Justice is seeking to confirm and clarify the respondent's position by restating it as a question, indicated by 'you are saying that...' framing. The 'But you -- right' interruption suggests the Justice is testing their understanding of counsel's argument, making this primarily a clarifying inquiry with some mild skepticism about the scope of the warrant requirement.”
That that would be a search?
“This brief question appears to be seeking confirmation or clarification about whether a specific action constitutes a 'search' under the law. The slightly elevated skepticism reflects the possibility that the Justice is questioning or doubting the characterization, but the phrasing is primarily clarifying in nature.”
And let me -- I mean, I -- I'm happy to --
Sure. I mean, if you want to --
“This is a very brief, casual affirmative phrase that appears to be procedural or conversational in nature, likely granting permission or deferring to counsel. The 'Sure' and incomplete trailing phrase suggest neutral accommodation rather than any strong emotional valence.”
-- why -- why I think that would be.
-- I -- I just wanted to --
“This appears to be a partial, interrupted utterance where a Justice is attempting to interject or begin a question/comment. The fragmentary nature ('I just wanted to --') suggests a procedural or clarifying interjection, most likely neutral in tone with some clarifying intent, though without more context it's difficult to assign stronger directional sentiment.”
-- make sure we had a crisp understanding what the government's position was on that. So that's your position?
“The Justice is explicitly seeking a clear restatement of the government's position, using language like 'crisp understanding' and confirming 'that's your position?' — this is a classic clarifying move to pin down the argument precisely before proceeding.”
Yes, that -- that is the government's position on both of those issues.
Yes, really quickly. I -- I think there's something about the iterative process that may matter. And so just taking Justice Kagan's hypo really quickly for an understanding of what is happening, tell me if the government is thinking about it in this way. You keep saying this is like storage lockers with glass fronts, where the piece -- with glass on the front of it. They don't have solid doors. Anyone can look and see what's in there. So step 1 is the government saying tell us if, by looking at these lockers, any include -- have bags in them that might have a gun in them. Give us the list of the ones or how many have that, I think, is sort of a step 1 concern. And then maybe step 2 is, once you've gotten that subset, open the -- the lockers and, you know, see if there's really a bag or 137 feel if there's really a bag, and then step 3 is open the bags inside each of the lockers. I feel like there's something happening with the way in which Google is providing this information in response to the government that may be requiring more probable cause or more particularity as you go along. So what is the government's thought about that?
“The Justice is actively engaged in exploring a complex conceptual framework about iterative steps in the warrant process, building on a prior hypothetical. While there's some concern about whether the government's approach requires more probable cause at each step, the tone is primarily one of intellectual engagement and genuine inquiry, constructively developing an analytical framework rather than challenging the government's position adversarially.”
Your Honor, with my continuing caveat that I think there's a limited utility in some of these physical analogies, I would kind of resist breaking it down exactly that way. I think step 1, you know, if we want to use the gun example, step 1 might be more, okay, you've got a glass partition here, tell us which of them have guns in them. Number 2 would be, okay, of that subset, continuing to look through the glass wall, you don't even need to open it for this because this is still stuff that is exposed to your view, please tell us which of them have a gun and a box of ammunition. And then step 3 is, okay, for the two 138 or three you found, please tell us who's rented those storage lockers.
Do you agree that you need more to get to each step? I -- I mean, here, what criteria did -- did the detectives use to narrow down the list from the 19 to the nine to the three that were ultimately there? And wouldn't a particularized warrant need to have some criteria in it to guide law enforcement at each of these stages?
“The Justice is probing the sufficiency of the warrant's particularity requirements, questioning whether the criteria used to narrow down suspects were adequately specified — a classic skeptical challenge to the respondent's position. The multi-part question also seeks clarification on the factual record and raises concern about the implications for Fourth Amendment particularity standards.”
So, Your Honor, with -- with apologies, I think I need to take a step back and say that I don't really view this as getting more particularized. I believe there was enough probable cause to -- that the original warrant was -- and the 19 people that turned up, probable cause to believe those people would be either witnesses or suspects, and then there's a question of how to figure out which ones to follow up on. So what you actually have here is a warrant that I think is fully particularized with probable cause the whole way through.
You could have 139 gotten the 19 names from the beginning?
“The question probes whether the respondent could have obtained the names from the outset, suggesting the Justice is questioning why a different procedural path was taken. This carries both a clarifying intent (genuinely seeking to understand the timeline) and mild skepticism about whether the current approach was necessary.”
I think that we -- I think that we could have. But, in order to maximize privacy, what happened here was that the warrant included a minimization requirement on the government at each step, which is akin to the kind of minimization requirement you see in the Wire Tap Act.
Thank you, counsel. Rebuttal, Mr. Unikowsky? REBUTTAL ARGUMENT OF ADAM G. UNIKOWSKY ON BEHALF OF THE PETITIONER
“This is a purely procedural statement transitioning between counsel, with a polite 'Thank you' and an administrative call for rebuttal argument. There is no substantive judicial sentiment expressed.”
Thank you, Your Honor. So I'd like to say a few words about why this was a search, a few words about the warrant, and then, finally, why the Court should decide the case. So, first, why this was a search. I welcome counsel's concession from the podium that if there was a search for something like -- something else in the cloud, like email or calendar entries or photographs, in that 140 case, there really would be a search and a warrant would be needed. But, although I welcome that concession, I just don't understand the distinction that is drawn between those types of data and this type of data for Fourth Amendment purposes either under a property or a privacy lens. So, under a property lens, a person's relationship to their location information is the same thing as their relationship to their photographs or to their email. It's in their password-protected account. Counsel suggested that the answer might be different because it's in some way raw data, it's sort of generated by your phone as opposed to sort of a creative writing. So, first of all, it's generated by the person in the sense that you move around. And, second of all, I don't understand why that distinction has anything to do with the Fourth Amendment. Just as an example, you know, your Fitbit or your Apple watch might measure heartbeat and that information might be transmitted into the cloud. I still think 141 that's yours even though it's generated by your autonomic nervous system as opposed to the fact that you've written a journal. It just seems to me that if you have control over the data, you can turn it on, you can turn it off, you can delete it, it just doesn't matter if it's created by taking a photo as opposed to by the fact that you've decided to go somewhere. Similarly, from a privacy perspective, I don't see why a photo you take outside is somehow more private than where you were that day because you don't have an expectation of privacy in, like, the thing that you were seeing if you were outside, but you do have an expectation of privacy in all of your photos. And, likewise, you have an expectation of privacy in everywhere you've gone. So I think that if the Court accepts the government's concession that you have an expectation of privacy or a property interest in photos and emails, the same thing would be the case for location history. As to the warrant on the step 1 issue, you know, Justice Jackson suggested that what 142 happened here is that the government received a list of, like, 19 different people that were in the geofence. But, respectfully, I don't think that's what happened. What it actually got is all of the movements of those 19 people within that hour stretch. So it's a little bit like going into 19 apartments and taking a complete inventory of everything in the apartment but not disclosing the person's name because, if you look at the record, like, all of those granular movements for that entire hour were exposed. And so that's why I think that the Ybarra case is directly on point here. You don't have probable cause to search based on someone's proximity to the crime. What happened here is each person's, what we regard as a virtual storage locker, was searched solely because of their proximity to the crime and because the -- their movements within the hour were exposed every two minutes. That's different from simply identifying which accounts were within the geofence. It's really exposure of information about them. And although it's nominally anonymous, 143 the record shows it's actually quite easy a lot of the time to figure out exactly who a person is based on a relatively small record of their movements. But, look, I've heard some questions from the bench today about steps 2 and 3. There's clearly a constitutional problem with those steps. I mean, as Justice Jackson suggested, the warrant wasn't particularized. There's no criteria given for identifying those people. In terms of how to decide this case, I think it would be a very significant case giving a lot of guidance to the bar if the Court says, one, a search happened, and, number two, at step 2 and step 3, at a minimum, there was a problem with the warrant, without reaching some of the broader questions about general warrants or particularization if the Court is inclined to resolve the warrant question narrowly because the government has a lot of very striking arguments on the warrant issue that could have significant implications. One is that Google wasn't acting as the government's agent, so it makes a 144 difference that, you know, Google pushed the button as opposed to the police. Another argument that's made is that the fact that software is conducting the search is constitutionally relevant, which could have revolutionary implications when, like, AI is monitoring everything we do as opposed to a human being. Also the arguments that as long as something is nominally anonymous, that makes a Fourth Amendment difference, which also can have radical implications when de-anonymizing someone is very easy. So, like, all of these arguments that the government is using to defend the earlier searches could have very broad implications. So, if the Court believes that the warrant is unconstitutional at step 2 and step 3, it has the option of just setting aside those broader questions and deciding the warrant issue narrowly and also deciding that's a search. That would be more than a broad enough opinion to be useful to the bar. And I guess, on the final question of whether the Court should decide the question presented, look, it's very hard to see how the 145 Court could decide a question like this outside the context of a motion to suppress. If the Court says the good-faith exception applies here, it'll apply in every single case. And Justice Alito posed the question of what about all the other people, the 500 million people who were searched? Well, number one, they're not told. All of these warrants are sealed. The reason the outcry doesn't exist is that no one knows that thousands of times per year their accounts are being searched. Second, a 1983 claim by any of those people against the detectives would clearly fail on a qualified immunity basis. So, really, the only way these issues would be litigated is through a motion to suppress in a case exactly like this one. And this is a good vehicle to decide the case because there's an extensive evidentiary record. There is declarations from Google. There's live testimony from Google. You'll never have a case with a more detailed account of the technical aspects of the case than this one. And so that's why I think the 146 Court should decide the Fourth Amendment question in this case.
Thank you, counsel. The case is submitted. (Whereupon, at 12:05 p.m., the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument submission. It contains no emotional valence, no questioning, and no evaluative content whatsoever.”