The Google dragnet

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MARY REICHARD, HOST: It’s The World and Everything in It for this 18th day of May, 2026. We’re so glad you’ve joined us today. 

Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Time now for Legal Docket.

The Fourth Amendment was written at a time when memories of British officers rummaging through homes and papers were still fresh in the minds of Americans.

Now, the Supreme Court has to decide what that centuries-old protection against “unreasonable search and seizure” means in the digital age.

The question in this case: when police ask a massive tech firm for location data on every person near a crime scene, is that legitimate police work, or is it the modern equivalent of handing the Redcoats our phones and passwords?

REICHARD: Here are the facts in Chatrie v US: In 2019, police in Virginia were investigating a bank robbery. They had no suspects, so they started with the phones. Investigators asked Google for data showing which devices were near the bank around the time of the robbery.

EICHER: The search eventually led to a man named Okello Chatrie, who prosecutors say committed the robbery.

But Chatrie argues that search violated the Fourth Amendment, because it swept up the data of everyone within certain constraints of time and place, including innocent people.

His lawyer is Adam Unikowsky:

UNIKOWSKY: The Court should hold that people have a property interest in their data …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….the search violated the Fourth Amendment because the warrant gave the police unlimited discretion…while casting Google into the role of magistrate.

REICHARD: The federal government frames the dispute very differently. Solicitor General Eric Feigin:

FEIGIN: Petitioner here is asking for an unprecedented transformation of the Fourth Amendment into an impregnable fortress around records of his public movements …That's a debilitating and counterintuitive reading of the Fourth Amendment that would impede the investigation of kidnappings, robberies, shootings, and other crimes….

At the core is a modern question the Constitution never directly anticipated: when people rely on digital services every day, does storing that data with a tech company amount to consent for government access? Or does the sheer necessity of digital life mean constitutional privacy protections still apply?

Chief Justice John Roberts jumped in with Chatrie’s lawyer:

ROBERTS: 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 phone. So what's the --what's the issue?

UNIKOWSKY: 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.

Justice Samuel Alito wondered why this case was even at the high court at this point:

ALITO: 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.) 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 are going to say that no reasonable officer could believe that this was a valid warrant…. what you're asking for is an advisory opinion….This involves a Google feature that doesn’t exist any longer…

What Alito is saying is Google no longer stores location history that way. Instead of keeping massive centralized records in the cloud, much of that data is now stored directly on users’ devices. And that makes broad geofence sweeps harder to carry out.

Still, Chatrie’s lawyer argued the constitutional question remains urgent because police used these warrants thousands of times—and because the Court’s reasoning could affect access to many other kinds of cloud-stored data.

But several justices seemed more interested in the broader constitutional question: when people rely on digital tools every day, how much privacy do they actually surrender?

Justice Amy Coney Barrett took a wider view:

BARRETT: Putting aside that this was in a password protected account, taking out 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.

EICHER: But Justice Sonia Sotomayor pointed out how embarrassingly modern phones track some people’s lives:

SOTOMAYOR: 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?

UNIKOWSKY: Yes.

Chatrie’s lawyer warned that the case reaches beyond location tracking. If simply using digital services wipes away privacy protections, he argued, then nearly everything people store in the cloud could become fair game for government searches.

It was here that the argument really escalated.

If the simple act of sharing data with Google so that you can use that technology counts as consent… then what about everything else in the cloud?

Justice Neil Gorsuch:

GORSUCH: 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?

UNIKOWSKY: 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.

Justice Alito brought things back to personal responsibility:

ALITO: 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.

UNIKOWSKY: That is the same provision that exists for everything that you store in Google 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 end of the fourth amendment for any private document you’re storing with Google.

Justice Elena Kagan posed a hypothetical as a potential fix:

KAGAN: Suppose Google…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?

REICHARD: Unikowsky said, not necessarily, because privacy expectations cannot just depend upon warnings like that.

As for the government, it argues this was not a dragnet at all. Users opted to use location services. It was a targeted search with only 19 devices identified, and that was narrowed down to 3 from a very short time frame and a tiny geographic area.

EICHER: Not only that, but some crimes would go unsolved without geofence warrants, such as the hit and run death of bicyclist Pamela Morehouse in California. That case had little evidence until Geofence identified a suspect who had lied to police.

In this exchange with the government lawyer, Chief Justice Roberts spotted a downside risk:

ROBERTS: …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?

FEIGIN: Well, number one, Your Honor, would be the Stored Communications Act.

The Chief was not buying it:

FEIGIN: What really matters here is that people have affirmatively opted in. Only one-third of active Google account holders…

ROBERTS: 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?

Yet in this comment to Chatrie’s lawyer, Justice Brett Kavanaugh saw the facts in a different light:

KAVANAUGH: So we have probable cause, you admitted that, and it’s just then is it sufficiently particular. And it seems like Detective Hylton here, you know, really went through a lot of 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, he got a warrant.

Google is not a party to this lawsuit, but it did file a friend of the court brief that provides additional information. It warns these warrants can be broad and invasive. Some of the geofence parameters have caught up thousands of people, covered many miles, and lasted for days.

Churches, hospitals, and schools…oftentimes nobody even knows about the requests for information.

REICHARD: Unikowsky closed his argument on an ominous note, referencing the lower court’s finding that the police acted in good faith, even if there probably was a constitutional violation:

UNIKOWSKY: If the Court says the good-faith exception applies here, it'll apply in every single case….The reason the outcry doesn’t exist is that no one knows that thousands of times per year their accounts are being searched…..And this is a good vehicle to decide the case because there's an extensive evidentiary record. …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 Court should decide the Fourth Amendment question in this case.

EICHER: Alright, on to case two now: Federal Communications Commission v AT&T and Verizon. This one asks whether a federal agency can publicly accuse companies of major wrongdoing and then announce huge penalties before those companies ever even get to a jury trial.

It started when the FCC proposed more than one hundred million dollars in fines against the carriers for mismanaging consumer location data.

But the FCC handed down the penalties through its internal administrative process. No hearing.

REICHARD: So the telecoms are striking back, arguing the move bypasses the courts and violates the Seventh amendment right to a jury trial.

Representing the telecoms, Jeffrey Wall argued that being branded as an “egregious lawbreaker” by a federal regulator leaves companies no choice but to protect their reputations:

WALL: That's a straightforward violation of the Seventh Amendment and this Court's decision in Jarkesy. The government’s only answer is that the penalties weren’t binding; they were just invitations to pay.

They want these forfeiture orders because they know that legitimate parties pay 100 percent of the time. If your main regulator says that you are violating the law, you can't let that hang over your head indefinitely.

EICHER: But the justices pushed back. FCC forfeiture orders are technically non-binding. There’s no immediate legal obligation to pay.

The Chief Justice seemed to lean that way:

ROBERTS: Counsel, I wonder if, though, at the end of the day you're really just talking about a PR problem, right? You're just saying they're big letters, the language said we did something bad…so everybody has to pay so they don't get bad PR. And I'm just wondering, in terms of the substantive legal issue though, you are not obligated to pay until you get a jury.

WALL: Well, Mr. Chief Justice, I think we have to separate whether you owe something from when you have to pay it. If I get a parking ticket from the government, I can ignore it and make them come after me, but I still owe it….

REICHARD: The government’s lawyer argued reputation is not a big deal, and that if the carriers don’t pay, then the DOJ sues in federal court where a full jury trial will take place.

Several justices sounded skeptical of the telecoms’ argument, because the companies can still force the fight.

Based on the questions, I think it gives the FCC the upper hand because the relevant law favors it.

EICHER: Well, the Supreme Court handed down two opinions last week. We will briefly summarize both of them. 

First, in Montgomery v Caribe Transport, a unanimous court ruled that a man injured in a truck crash can continue his lawsuit against the freight broker that hired the trucking company.

Shawn Montgomery was injured in that truck crash. He argued that the broker hired an unsafe trucking company with a poor safety record.

Lower courts threw out the lawsuit, but the justices said a federal transportation law includes a safety exception that allows states to regulate motor vehicles, including negligent hiring claims.

REICHARD: Finally now, another unanimous decision in Jules v Andre Balazs Properties. The Supreme Court said that if a case starts in federal court and is paused for arbitration, the court still has power afterward to confirm or cancel the arbitration result.

And that’s this week’s Legal Docket!

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