Digital Privacy Divide: Can Law Enforcement Google Where You’ve Been?

[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. On August 9th, the U.S. Court of Appeals for the Fifth Circuit issued a landmark ruling that could substantially alter how law enforcement conducts investigations in the digital age. The court declared that geofence warrants, those orders that compel tech companies to provide data on all devices within a specified geographic area, are unconstitutional under the Fourth Amendment’s protection against unreasonable searches.

[00:00:32] The case at the center of this decision, United States v. Smith, involved three men convicted of a 2018-armed robbery of a mail truck in Mississippi. The 5th Circuit ruled that geofence warrants are unconstitutional, owing to the size of the nearly 600 million user database being searched. This decision marks a profound shift in the legal treatment of digital privacy and stands in direct opposition to a ruling just last month by the 4th Circuit, which upheld the use of geofence warrants under certain conditions.

[00:01:02] The 5th Circuit’s ruling not only creates a circuit split, but also signals a potential Supreme Court showdown that could redefine privacy rights in the digital era. What does this ruling mean for the future of digital privacy in the United States? How will this decision affect the way law enforcement agencies operate?

[00:01:19] And what might happen next, as this issue potentially makes its way to the Supreme Court? My guest today is legal fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies, Brent Skorup, whose research area includes free speech, technology law, Fourth Amendment protections, regulation, and property law.

[00:01:38] Mr. Skorup will discuss the facts in the U.S. v. Smith case, The split the ruling creates with case precedent and the Fourth Circuit, and the limits of searches as technology evolves to record every detail of our movement. He will share his views on the long-term implications for criminal investigations and technology should the Supreme Court hear this case in the future.

[00:01:59] When I return, I’ll be joined by Cato Institute’s legal fellow, Brent Skorup. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by legal fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies, Brent Skorup. Welcome to Hubwonk, Brent. Thanks for having me, Joe.

[00:02:18] There’s a lot to understand in this recent Fifth Circuit ruling in U.S. v. Smith. I want to talk about how it informs our understanding of privacy, the constraints of warrants and searches, and frankly, the nexus of our very connected world with the power of the state. So, I want to start at the very beginning and look at our shared right, our constitutional right, against unwarranted searches. Where does that right come from?

[00:02:43] Brent Skorup: So, the Fourth Amendment to the Constitution, provides that Americans have a right to be secure in our persons, our houses, our papers and effects against unreasonable searches and seizures, and we also, any warrant that issues must be supported by a probable cause.

[00:03:01] Particularity describing the persons to be searched and the things to be seized. So, fundamentally, what’s often called a right to privacy comes from, the Fourth Amendment in our protection against Unreasonable Search and Seizure.

[00:03:14] Joe Selvaggi: Okay so, we have a right, I’ll just quote the Fourth Amendment here for the benefit of our listeners. It’s in our constitution. quote, the right of the people to be secure in their persons’ houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause. Supported by oath or affirmation and particularly described the place to be searched and the persons or things to be seized.

[00:03:35] So that’s pretty powerful, pretty concise. We have a right against unreasonable search and seizure. And I think if I’m hearing what you said accurately that what is reasonable is based on probable cause and some specificity as to what is going to be searched and what might be seized. so.

[00:03:55] Without this right, I just want to frame it even more specifically. Essentially, this was, say, our founding fathers, resistance to this notion that you could just, knock on a door and toss a house looking for any kind of evidence of a crime. In other words, no such thing as a general warrant, which would grant police, the right to just go around looking for evidence in a possible crime. Is that fair?

[00:04:17] Brent Skorup: Yeah, that’s right. The Fourth Amendment was put in place, it was foremost on the Framers Constitution in their memory of British officers and the Crown’s officers just ransacking houses looking for evidence of wrongdoing, from, from citizens of the U.S. colonies. So, this was foremost in their mind. They wanted to prevent so called general warrants, which basically just Say, crime has been committed and officers can just ransack a bunch of houses looking for, so called wrongdoers. So, the Fourth Amendment prevents that.

[00:04:48] Joe Selvaggi: That’s right. So, okay. So, we’ve set up the principle here. So, let’s get into the specifics of what the Fourth, what the Fifth Circuit decided. the Fifth Circuit, Court of Appeals decided, last week. the case was U. S. v. Jamar Smith. I’ll just say for the benefit of our listeners, I’ll sum up, the high level of what went on in this case. We have a mailman who got robbed in Mississippi. and the investigators had very little to go on as far as leads. share with our listeners the important facts in this case.

[00:05:17] Brent Skorup: So, as you said, a, a contractor for the US Postal Service was, mugged. He was unloading bags of mail, much of which, much of it had cash in it. He was, yeah, mugged by an assailant. Presumably, presumably a man, sprayed with pepper spray was struck by handgun. the assailant threatened to kill the mailman. took the mailbags and within the mailbags were 60, 000and then the assailant fled in a vehicle the police had some surveillance video I believe a local commercial establishment had some grainy video they saw police saw some cars circulate circling the area where the mugging occurred, they saw a man, who appeared to be on a phone prior to the, prior to the crime. And, but, aside from that, they didn’t have anything go on.

[00:06:09] Joe Selvaggi: So, this is a pretty bad crime. I think they got something like 66, 000 out of the mailbag and very little to go on. But as you mentioned, the surveillance saw a phone involved. So, I don’t know if effect that, that had any effect on the, the prerogative to go to a third party, in this case, Google and asked for a list of accounts that were near the crime scene. They had no names, they just knew when this, crime had occurred, where it had occurred. What happened next? what did the investigators do when they went to Google?

[00:06:38] Brent Skorup: So, the Postal Service investigators, as you said, came on dead ends. They couldn’t, with the grainy video, they couldn’t really identify who it was. However, the investigators heard about this new, fairly new investigation technique called a geofence warrant, which has been growing in popularity, I would say, over the past five years. So, a geofence warrant is, is a little unique in that you’re in a traditional warrant, your police officers are specifying, a home they want to search or a person they want to search.

[00:07:13] With a geofence warrant, you’re specified, the police are specifying a geographic area, that they want to know who is in a geographic area in a particular time period and almost all geofence warrants go to Google, because many of us have Google phones or use Google affiliated applications that provide GPS tracking. And so police over many years have been getting these geofence warrants where they Go to Google and say, tell us who was in this area, a city block or whatever within, a 2 hour time span as an example. but that’s the basic of it. And I can talk more about geofence warrants, but they went to Google. The U.S. Postal investigators said, tell us who was. Around this area of the mugging, in this particular time period.

[00:08:06] Joe Selvaggi: So, we’ve got a lot of new vocabulary words here. I had to learn in this case what geofence was, but I suppose it’s geography and fence a metaphor for what’s going on here. They’re figuring out who’s in a particular, let’s say space circumscribed, perhaps a circle or a rectangle, a city block, right? I’ll provide our listeners with another bit of, Vocabulary. there’s, Google has something called a sensor vault, right? It has, nearly 600 million active accounts. That’s, people like you and me who have cell phones, but, those might be attached to our Google accounts or to some of the, applications we use, and all of them show where we are.

[00:08:39] Again, I was in reading the case, I see that, Google’s accuracy is often within six feet. It can determine what floor of a mall you’re on or in a building. So, it’s pretty accurate stuff. So in this case, the investigators go to Google and they say, let me know who, might have been or who was in this space at this time. Describe for our listeners, what did, the investigators have to do in order to, let’s say, justify or legally, compel Google to share this data with them? what steps did, what hoops did they need to jump through?

[00:09:12] Brent Skorup: Yeah, so the geofence warrant. Process, even to those like me who follow this area closely was a bit mysterious until, fairly recently. We now have a couple of court cases explaining how the geofence warrant process works. and there’s three steps.so law enforcement, they’ll go to a magistrate, a judge, and seek a warrant, a geofence warrant. They’ve got to have some evidence, some particular evidence about why they’re searching a particular area, a geofenced area, but they’ll get a judge to sign off on it.

[00:09:45] And then they’ll give this warrant to Google. As I said, it’s a lot of work. Other companies as well, but it’s typically Google who has this geolocation information. and so, there’s three steps. Step one, please say to Google, we want to know who is in this, city block or whatever, from, in this one-hour time period, we want to know all the accounts who are there.

[00:10:08] but provide, search, search all your records. But provide us a list of anonymized accounts. That’s step one, where they give that warrant and that instruction. I want to emphasize that the information they’re requesting is anonymized. it’s an artificially assigned device number or something. But please just want to know a rough idea of how many people are there.

[00:10:29] So that’s step one. As step two, please single out some of those anonymized devices, and they go back to Google and say, these few devices interest us. We want to know where these devices were outside the geofenced area. And typically, they again provide a limited time. They say two hours outside the geofence know where these devices went.

[00:10:54] So it’s a narrow list from that first, from step one. Again, this is anonymized, and then finally at step three, police again have narrowed down the list, based on where these accounts were going, in a broader time period outside the geofenced area. They then narrow it down and go to Google and say, these couple accounts interest us.

[00:11:15] Tell us their usernames, their IP history and their names if you have it. So, again, step one, instruct Google. Go through all your records, tell us who was in this area for this short time period, step two. These, this subset interests us, tell us where they went, before and after, the crime. And then step three, when they’ve narrowed it down for, when police have narrowed it down further, they say, we want to know names and account numbers for these people. And that’s what happened in this Smith case.

[00:11:47] Joe Selvaggi: This, again, my, Spidey sense is tingling here in that the government now is able to essentially say who was where when there’s no promise that any of these bad guys had, Google tracking, right? There’s no This may have all happened with them out having turned off all their tracking on their phones or not have their phones at all, perhaps. So, this information could pick up everybody, just somebody walking by on the street somebody committing a different crime that, just got caught in this sort of dragnet are the police doing this now? Is this sort of now something, commonplace? Or is this, are we on the cutting edge?

[00:12:22] Brent Skorup: It’s fairly common. That’s safe to say. I wouldn’t go as far to say this is the kind of their first step, for law enforcement, but it is fairly common. I haven’t seen recent numbers, but as of 2020, Google was getting about 12,000 of these Geofence warrants annually, in, in the year 2020, so that’s a couple dozen a day on average. they’re getting these geofence warrants, ranging from, very serious, murders all the way down to vandalism in some cases, stolen wallets and burglaries. So it really runs the gamut, but, yeah, as our most recent records show, Local and federal law enforcement are seeking a few dozen of these geofence warrants per day.

[00:13:05] Joe Selvaggi: Well, I think digital privacy is an issue for a lot of people. I will admit if, for our avid listeners, I don’t cover the issue very often in the last four years, four and a half years of doing this podcast.

[00:13:14] And for me, I’ll admit, I’m somewhat comfortable with the idea that Google or Facebook or my credit card company for that matter knows what I’m up to because I enjoy their services, but they’re private individuals, private entities, private companies. This seems to me to be a nexus between the information I freely give or share with you my internet providers, and now the government, which also would have access to know where I am at all times of the day. this to me, you know, again, we’re talking about 600 million accounts in this, this searched database. This makes me a little bit uneasy, the government having access to this.

[00:13:46] In this case, let’s get back to the case, U. S. v. Smith. It also made the judge, the judges in the Fifth Circuit of Appeals uneasy as well. Say something about their observation or their perception of the constitutionality of geo warrants.

[00:14:05] Brent Skorup: Yeah, so, I mentioned the three step process that law enforcement went through here with Google. Um, through this, they, police found two suspects, that, based on the records that Google had turned over to them, they found two suspects, and with this geofence, information. They then got a traditional warrant. They then knew account names and they went to Gmail, and they went to a phone provider for additional evidence.

[00:14:31] But initiating the case was this geofence warrant and then they got more evidence. So then, they eventually arrested and, and I believe all three were convicted, at trial. based in part on this geofence evidence, and so the three suspects here, alleged that this was a deficient warrant, this geofence warrant, and therefore all this evidence against them should be suppressed because, essentially all the compelling evidence against them, wouldn’t have been gathered had this geofence warrant not been issued.

[00:15:05] So the Fifth Circuit, so again, they were convicted at trial. The suspects appealed to the Fifth Circuit, and the Fifth Circuit took a look at it and agreed with the suspects. They said, this warrant is deficient. it’s it resembles that general warrant that we talked about. this British practice of just ransacking houses with a general warrant.

[00:15:28] the Fifth Circuit said, this has a lot of parallels to it. The Fourth Circuit, the Fourth Amendment is designed to prevent these. Broad searches of information, of places just to find wrongdoing. And so, they said the warrant’s deficient and, they, this is a side, an aside, but they, did allow the evidence to stand in this case. But in future cases, the evidence, police can’t use these, these geofence warrants in the Fifth Circuit.

[00:15:56] Joe Selvaggi: So, I think the facts in the case, just to be clear, Mr. Smith, still goes to jail, but it’s based on the fact that the information used, the police thought at the time it was fair to collect, so, they made an exception in this case, so, to allow the evidence.

[00:16:08] But they, their observation from a constitutional perspective was this search was too wide. I want to just clarify one thing. They weren’t saying that the warrants weren’t properly done. And again, in the steps, but rather the database they were searching is too vast, right? And this is essentially saying, if I’m interpreting this correctly, any geofence search warrant is A general warrant because of the massive amount of information one needs to scan in order to find the needle in the haystack. Am I right with that?

[00:16:40] Brent Skorup: Yeah, that’s right. They, the court here, the 5th Circuit here said that initial operation Request to Google is a search, which is a little interesting. We’ll talk about it in a bit and how that differs from the 4th Circuit case here. but they said that the initial step, the request to Google to search all their customer records is a search by the government, and they said this so called warrant is equivalent to a general warrant and said it’s just facially deficient and, cannot be valid. No, Google cannot, cannot be compelled to search, based on a geofence warrant.

[00:17:18] Joe Selvaggi: So, so this creates what we call, or what you call in the legal world, a, a disagreement, a conflict between two different, court of appeals, the Fourth, which had recently decided a case, and the Fifth. Let’s just do a little bit of background here then. I think it was recently, maybe a couple months ago, the Fourth Circuit ruled on a particular case, very similar to this, called US v. Chachri, I think I have that right, um, and they took similar evidence and found the exact opposite, which is to say the search wasn’t unconstitutional, largely based on the narrowness of the case.

[00:17:51] of the information that was sought. Share with our listeners the general information or the general features of that case and how it’s different and ultimately how the Fourth Circuit decided in a different way from this Fifth Circuit of appeals.

[00:18:06] Brent Skorup: Yeah, so, so the 5th Circuit, covers a southern region that includes Texas, and Louisiana, Mississippi, and the 4th Circuit covers Mid Atlantic where I am in Virginia and some other Mid-Atlantic states.

[00:18:17] But the 4th Circuit, So, the Chachere case was a very similar case. It was another crime. This time it was a bank robbery. And like the Smith case, the police, their investigation went cold. They couldn’t identify, they know a bank robbery occurred. They know which vehicle, which direction the vehicle headed, but they didn’t have much more to go on than that.

[00:18:37] And so, they, In Chattery, police went to Google with this geofence warrant, said we want to know who was at the bank at the time of this robbery, and then they went through these three steps again, the initial request for Google for anonymous ID numbers, this narrowing of, Of, of devices, and then police asked for where these particular devices went outside the geofenced area for two hours.

[00:19:07] And then, based on which ones looked most promising, then they asked for the account and, and names of, device users. and so. So, but the Fourth Circuit came to a different conclusion than the Fifth Circuit and, created this, circuit split, about, about geofence warrants they said, it was permissible.

[00:19:27] Joe Selvaggi: Yes, so we’ve got this split, to, similar cases, and different determinations. We know how the courts work. We know how judges are supposed to work. They look at precedents, and as you mentioned at the top of the show, this is new stuff. We didn’t have, Google and smartphones, at the Founding Fathers, convention, so we’ve had to apply, let’s say, old ideas to new technology when we look to precedents, and we say, okay, how should we think about this in this modern world? what is an illegal search in a modern time when we have what used to be ephemeral information, where we were, when we were, now is memorialized forever in some database. What did the courts look for similarities in this case to support their decisions one way or the other?

[00:20:13] Brent Skorup: Yeah, and I confess, the precedents here are, can be hard to find a coherent, line between them, but there, there is some precedent here that you often see in these, in these geofence cases in particular, courts look to, well, so there, there’s a court made doctrine called the third party doctrine and this came about from some court cases in the 1970s.one, U. S. v. Miller, involved police acquiring, bank records of a suspect. I believe, suspected of financial crimes of some sort, but they got bank records without a warrant. And there was another case called Smith v. Maryland, where, Essentially, what we might call a wiretap of a phone, without a warrant to see who a suspect was calling in those cases, the Supreme Court of the United States said information that someone, that you or I, or anyone is voluntarily turning over to a third party, like a bank, like a phone company, we’ve got to dial numbers into our phone that has to be sent to our phone company so they can complete the call.

[00:21:19] Any information we voluntarily turn over to a third party, we lose our expectation of privacy in that, and when the government acquires that information, it’s not a search, and the Fourth Amendment does not apply, and thus, no warrant is required. So, this third-party doctrine has been quite powerful, and, quite powerfully limits our, privacy expectations, because we turn over a lot of information to third parties all the time, even sensitive information. However, I will say, we have, we have these older cases, and the court is applying this to this new world of digital information. I’m sure, many listeners are familiar with just how connected our world is now, just everything on our phones.

[00:22:00] On our work computers, on our personal computers, a lot of this is being, stored in the so-called cloud. It’s being stored on servers far away, on third party devices, and, and the Supreme Court is struggling with how to apply, does the third party doctrine apply to this new digital world we have, and, And the court, in a case called Carpenter a few years ago, seemed to indicate, where digital data is not like the bank records in Miller, it’s not like the phone number dialed in Smith, digital information is a little different just because it’s so vast and it reveals so much about us that if law enforcement could get that without a warrant, that would eviscerate all the privacy expectations we have. In this case called Carpenter, so this involves, police getting without a warrant, cell phone tracking information, which provides not quite as, it’s a little blunter than the geofence information we’re talking about, but it does provide location information, our cell phone records, so, and the Supreme Court said when law enforcement wanted a week’s worth of, of cell phone location information about a suspect without a warrant.

[00:23:12] Police, the Supreme Court said, no, you need a warrant if you’re getting cell phone location information from a phone provider. And so, it’s a little in flux, but, Supreme Court has said digital information is different. The third-party doctrine does not always apply.

[00:23:30] Joe Selvaggi: So, drilling down a little more, carefully into the notion of search, is your or is the issue at hand here, whether the entire database is the scope of the search or whether the very narrow, meaning, perhaps everybody would agree that you couldn’t simply say, geez, I think this is a bad part of town. I’m sure crimes are being committed. Give me everybody who’s walking in and out of this building. Bad block or bad neighbor, that would be, considered a general warrant. How specific are we talking about when we’re splitting hairs? If I’m trying to, make heads or tails of this idea that I want to be able to access this very valuable information, but I want to, in good faith, protect the notion of privacy, how would I tailor it?

[00:24:10] Or, what would the court say about how narrow the warrant would have to be to pass muster on everybody’s constitutional. scale. Do you understand what I’m saying? How do we have to shape these searches to be, to comport with the Fourth Amendment?

[00:24:28] Brent Skorup: I would say as of today, we don’t know these, this, this Chattery case and the Smith case, I believe are the only time, Federal Circuit Courts of Appeal have dealt with these geofence warrants and in Neither court provided, a helpful response to your question, like how specific does it need to be? The Fourth Circuit in Chantry said no search had occurred at all.

[00:24:52] You don’t even need a warrant. So, there is no, particularity or requirement laid out. In the Fifth Circuit, as I said, said that this is a general warrant. It’s just facially deficient. I could speculate about what would satisfy the 5th Circuit’s particular, what would be particular enough for the 5th Circuit, but it would just be speculation on my part. But you can imagine a narrow search, but it would be difficult to know based on these existing geofence processes, how you’d make that particular. I don’t know, maybe, yeah, I don’t know. Yeah, more limited time period, a smaller zone. I don’t know.

[00:25:30] Joe Selvaggi: Well, I’m going to, I set you up for this next question, which of course, when we have a split, our listeners know, because we’ve dealt with this before, when we have a split in the, Court of Appeals, the next, step, would be, if the Supreme Court grants cert in this case.

[00:25:42] Is that right? Where they will ultimately answer my question more specifically, which is to say, if Smith is, all, Google searches are unconstitutional, and, and the Fourth Circuit, which says it’s not even a search, let alone, one that requires a warrant, they’re going to, I guess consider taking this, and they would effectively then be charged or tasked with making a decision, answering my question, which is what constitutes a constitutional search of online data like this, geofence data?

[00:26:12] Brent Skorup: Yeah, so, yeah, I should add, and I think you mentioned both these cases, the Chattery case came out in July, the Smith case came out a couple weeks ago, a month apart, and there, it may work through appeals, I believe the government is looking Is seeking an appeal in the Fifth Circuit on, on the Smith case.

[00:26:30] So, it’s not the end of the story, but, but I do think a case like that. I think an issue like this will get to the Supreme Court eventually. I think, I think there probably will be a circuit split, at some point. there is, today. and so how will the Supreme Court approach it?

[00:26:45] Um, the core issue, I mentioned that three step process that Google goes through.to me, the big difference between the Fourth Circuit in Chattery and the Fifth Circuit in Smith is at that step one, where law enforcement has this so called geofence warrant and goes to Google and tells, tells Google, search all your record, all your 500 million account records, and, tell us who is in this geographic area.

[00:27:11] The Fourth Circuit said. that’s not a search at all, because Google is doing the search. The government is not doing the search, it’s just Instructing Google to do the search, and that’s not a search at all, according to the 4th circuit. The 5th circuit responded actually to the 4th circuit in a footnote.

[00:27:29] I wish they made this part of their main body of their decision. But they said, based on Supreme Court precedent, that requiring a private party to do the government’s business is still a government search. you could eviscerate all kinds of rights if the government can just compel a private party or work with a private party, say, a government contractor, to do unconstitutional things.

[00:27:57] So Fifth Circuit, I think has a strong ground in the argument. They said, no, step one is a search. This request that Google search its records is a government search. And the Fourth Circuit just said, that’s not a search. that’s not a government search. No warrant is required. So, I, I think the Supreme Court has to address that.

[00:28:15] Is a geofence warrant, is that a search or not? And that’s the core disagreement between the two circuits.

[00:28:22] Joe Selvaggi: Indeed. So I want to, again, challenge you and go a little bit out of your expertise perhaps, and say, okay, let’s imagine then, if this goes down, as you say, if the Supreme Court is more sympathetic to the fourth circuit’s, perspective and say that provided Google does it, it’s not a search.

[00:28:38] I think that, Google, in my mind, this has got to be bad for business, which is to say, if this becomes common knowledge that, all your, geopositioning information is now up for grabs from the U. S. government, they’ll know everywhere you’ve been, every moment of your life. The reaction naturally, I would imagine, would be Google would want to somehow limit that.

[00:28:58] They don’t want to be party to this. I hope they don’t. and then individuals would be more diligent about turning off their location. and in a sense, the world becomes less efficient. I won’t know as I’m driving down the road where the next gas station is. Or, I won’t know, All kinds of things that I enjoy because Google knows where I am, and Google will lose some power to, to provide that information. What do you see as this sort of logical, technical reaction to discovering the government can now suddenly have access to all your geopositioning information from the day you were born?

[00:29:30] Brent Skorup: Yeah, well, I’ll make one, one caveat. I believe in both these cases. The suspects had volunteered to be, for Google to store their location information, so they opted in, and this was relevant, in these cases, you know, or at least the 4th Circuit, which said, when you voluntarily turn over, and here, where you opt in to do it.

[00:29:52] If you ask Google to collect your location information, you can’t claim a privacy interest in it. So, I will add that, although, to your point, Google still tracks, even if you don’t opt in, they still track all kinds of location information. It’s not quite as extensive, if you don’t opt in, but, yeah, sorry, you’re getting back to your question?

[00:30:12] Joe Selvaggi: Yeah, will Google likely, create some sort of barrier that, essentially either prevent the government from getting this information or stop tracking, make it difficult for these non-searches to even occur.

[00:30:25] Brent Skorup: So, the interesting thing on that note is you’re exactly right.

[00:30:29] Google does not want to be an arm of the government. and Google does, take privacy of its users seriously. And it came out, in, in both these cases, that Google, and this has been publicly reported, during oral arguments of the Chattery case a few months ago, Google announced they will no longer be storing, people’s, location history as they have in the past.

[00:30:56] And I believe in an off the record interview, Google employees said in part that was because these geofence warrants have been a huge headache, just a PR and logistics and just a privacy problem. from the perspective of Google. So, so to your point, Google is taking steps to restrict what information they have on their customers because, the executives there are quite uncomfortable with their, with their need to respond to these geofence warrants.

[00:31:24] Joe Selvaggi: So, as you say, we’ve got a split. It’s a very recent split. I don’t know. I’m not well versed in how the Supreme Court works. If this is going to get, have, cert granted. when would that occur? And then when would we see this on the docket for the Supreme Court?

[00:31:39] Brent Skorup: Oh, yeah, that’s, again, I can only speculate and again, I know the Fifth Circuit, there might be further litigation here but, I would, maybe this is my own, bias, research in this area. I think this is very important stuff. but, yeah, I could see a case like this reaching the Supreme Court.

[00:31:58] Particularly if there’s a circuit split, in the next two or three years, but again, it, that is pure speculation on my part and the issue would be, like I said, it, is this a search at all? When, despite, Google limiting what information they have, they still have a lot of location information. And it’s not just Google. other apps we use daily track location for me. Uber and Lyft and, all, all, a bunch of other app companies have our location information. So, just because Google is limiting the search. Some of its information does not mean geofence warrants or going out of fashion.

[00:32:33] I know if anything, law enforcement is learning more about the capabilities of geolocation information, the fact that these records go back, five, six, ten years, it’s just, too much of a temptation to look at the information and solve crimes. I think it comes from, a healthy, desire to solve crimes, but of course, we have that can’t go too far, particularly when it’s as broad as a, as a geofence warrant.

[00:33:02] Joe Selvaggi: That’s right. And remember, I forget who said, show me the man, I’ll show you the crime. If you had everybody’s data forever, you could find something wrong in anybody’s past. well, this is exciting that, again, there’s a bright future for those people who are in this area studying the law, studying the constitutional, features, implied by the Fourth Amendment.

[00:33:21] so I guess you’ve got a lot of exciting work ahead of you. I want our listeners who are interested in this topic to know where to find you. You’re a Cato, of course. Where can our listeners, go to read either from the, the Center for Constitutional Studies, the Levy Center for Constitutional Studies, or your work in particular? Where can they find you?

[00:33:37] Brent Skorup: Yeah, you can find a tab for the Center for Constitutional Studies at Cato. org. I’m fairly active on Twitter. My handle’s @bskorup. And I would add, I’ll pitch, I’m working on a piece about these two cases And, a related case in Colorado where a Colorado Supreme Court found that people have a possessory interest in their digital records, and that’s the Fourth Amendment protection of digital records. So, there’s a lot of interesting, important court cases in this area that I’m writing about and I hope listeners will check it out.

[00:34:12] Joe Selvaggi: All right. Well, watch this space. I hope I’ve piqued some interest in, in this topic for our listeners. And you’ve been a great asset, fund of information and I think, taken a very complex issue and made it, more understandable for our listeners.

[00:34:22] Thank you very much, Brent. You’ve been a great guest. Thanks for having me, Joe. This has been another episode of Hubwonk. If you enjoyed this program, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us. If you subscribe to Hubwonk on your iTunes pod catcher, it will make it easier for others to find us if you offer a five-star rating or a favorable review. Of course, we’re grateful if you share Hubwonk with friends. If you have ideas or comments or suggestions for me about future episode topics, you’re welcome to email me at Hubwonk@pioneerinstitute.org. Please join me next week for a new episode of Hubwonk.