Online Applications Are Tracking Your Location, and the Government Wants That Information. Is That Lawful?

Full Fourth Circuit Court of Appeals to Rehear Geofence Warrant Appeal

2 min

When you use your cellphone to search for businesses near you, you may opt into data collection about your location with an accuracy of within a few hundred feet. Often, unless you affirmatively opt out later, that data collection does not stop. So, what happens when the government asks the company collecting your data, like Google, to turn over those records of your movements to determine whether there is evidence of your connection to a crime?

The question is the primary issue addressed in United States v. Chatrie, an armed bank robbery prosecution in the Eastern District of Virginia. The government charged Chatrie after obtaining a "geofence warrant" directed to Google, which orders the company to reveal at least some location information about all devices Google is tracking that enter a given area during a given time, parameters collectively referred to as the geofence. While the process of information disclosure is complex, involving first pseudonymized data, then refinement, then unmasking as to a specific user, the result is the production to the government of subscriber information for any phones the government identifies as suspect during the relevant time. When the government identified and charged Chatrie, using, in part, evidence obtained by this process, he complained to U.S. District Court Judge M. Hannah Lauck in EDVA that the warrant process violated his Fourth Amendment rights. In a first-of-its-kind ruling, Judge Lauck agreed in part, but provided no relief. The court held that the warrant constituted a search, but that it was not sufficiently particularized. In the end, the court concluded that the good faith exception to Fourth Amendment violations would allow use of the evidence.

A split panel of the Fourth Circuit, however, found the geofence warrant process to involve no search at all. Instead, because Chatrie had agreed to let Google track his location, the court held that he voluntarily disclosed his information to a third party, negating his Fourth Amendment interest in its use here. In dissent, U.S. Circuit Court Judge Andrew Wynn rejected the majority's position, agreeing instead with Judge Lauck's opinion at the district court level.

Recently, the full Fourth Circuit, sitting en banc, has agreed to reconsider Chatrie's appeal and decide what happens when the government comes looking for tracking data from Google and similar online applications and services. While the en banc takes place on January 30, if you find yourself in engaged with an investigation that may involve a geofence warrant, the Investigations and White Collar Defense team at Venable can help you navigate the path forward.