Chatrie
"A new technology should not transform what individuals had reasonably thought they could withhold from the Government."
On June 29, the Supreme Court ruled in Chatrie v. United States that the government collecting cell phone Location History is a "search," even though we literally "opt-in" to providing this information to a private company. The key point the Court is making is that cell phone features have become so ubiquitous and indispensable that many forms of (technically optional) data-sharing won't be considered "truly shared" for Fourth Amendment purposes.
Even though we may technically elect to share our location with Google, the process by which we share said information is distinct from sharing bank records and other actions under the third-party doctrine. More importantly, the data collected through Location History services includes the basket of information individuals expect to remain private. Furthermore, Google’s prompting detracts from the idea that this form of information sharing is truly voluntary.
This phenomenon is not implicit. The Court notes that “Google repeatedly prompts users” to enable Location History and warns them that their phones will “not ‘work correctly’ unless they turn on Location History.”1 Enabling this service is the “automatic price” of using a cell phone, and under Carpenter, it is a “pervasive and insistent part of daily life.” The third-party doctrine does not apply.
Here, the Court extends Carpenter v. United States, the landmark case that limited the third-party doctrine. While Carpenter dealt with whether individuals have a reasonable expectation of privacy over Cell Site Location Information (CSLI), a less expansive and more imprecise method of obtaining individuals’ location data, Chatrie asks a more pointed question—do we have a reasonable expectation of privacy over information we literally and technically elect to share with private technology companies?
The Court emphasizes that “a new technology should not transform what individuals had reasonably thought they could withhold from the Government.” The basis for treating cell phones as distinct for the purpose of one’s expectation of privacy lies in the fact that they are “compulsively carr[ied]” nearly “all the time.”
Later on, the connections of Location History to AI history become even more apparent: “The records thus serve as a personal journal of a user’s movements, which that user consults (and even can edit) for his own purposes.”
Yet despite this decision’s relevance to searching an AI user’s history, does this directly implicate deeper concerns about AI’s surveillance use cases? Well, for AI to be used in mass surveillance of Americans’ information, said data would have to be digital or digitized. The Court’s analysis here implies that we do have reasonable expectations of privacy over the vast amounts of data LLMs may ingest. Gorsuch’s concurrence, while not binding, is relevant here.2 By qualifying Chatrie’s data among his “personal effects” which the Founders intended the Fourth Amendment to protect, Gorsuch implies that much of the data found on the Internet in fact belongs to us. Or, as he puts it, “entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours.”
Chatrie’s conviction must stand on the evidence alone, and the evidence must be obtained lawfully. Everyone, Chatrie included, has the absolute right to Fourth Amendment protections in the United States.
As Justice Jackson emphasizes, the warrant in question swept up individuals beyond Chatrie. The Supreme Court has now held that, within the jurisdiction of the United States, individuals have a reasonable expectation of privacy over their cell phone Location History. What is crucial is the fact that they found this is true even though people may technically elect to provide said history to technology companies.
As artificial intelligence looms over the future, it may increasingly become a “pervasive and insistent part of daily life.” With respect to these systems, we must ensure our interactions remain private.
Google only provides this warning for Android users, not iPhone users
Gorsuch did not join the majority opinion, disagreeing with the standard of “reasonable expectation of privacy” taken from Katz v. United States which that Court uses.