Jane Bambauer, a leading information law scholar (both on the First Amendment and the Fourth Amendment side), wrote up these thoughts on the recent geofencing case, on which Orin had also written; I'm delighted to be able to pass them along:
Last week, Judge Lauck of the Eastern District of Virginia handed down the first thorough Fourth Amendment analysis of the police investigation process known as "geofencing." Judge Lauck found that the geofence warrant at issue in the case was unconstitutional. Moreover, the infirmities she found would be very difficult to cure in most police investigations where geofenced data might be helpful.
Civil liberties organizations have praised the opinion, but like Orin Kerr, I found the opinion confusing and poorly reasoned in its handling of key Fourth Amendment precedent. So I'll take this opportunity to add a few additional doctrinal critiques to Orin's excellent summary. But I'll end with a less wonky, more big picture plea: I hope the courts do not expand the Fourth Amendment to impede technological tools like geofences that help police conduct more accurate, less discretion-based initial investigations. With appropriate constraints, geofences and other "suspectless search" technologies can be an integral part of police modernization and reform.
Quick Summary
U.S. v. Chatrie concerned the investigation of a bank robbery. After investigating a couple leads using traditional policing methods without success, the detective working the case submitted a "geofence warrant" (subpoena) to Google to request deidentified information about the geolocation of any devices that came within 150 meters of the center of the bank during a one hour time span. (Note that the detective had some confidence that Google would have this information because bank surveillance footage showed that the bank robber covered his face using his … wait for it … Android smart phone.)
