How a Bank Robbery Became a Fourth Amendment Landmark

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:40 Thomas: Hello and welcome to Opening Arguments. This is episode 1284. I'm Thomas. That over there is real -life attorney Jenessa. How are you doing?

0:00:47 Jenessa: I'm doing great. So much has changed since we talked.

0:00:49 Thomas: So much has changed. So much. What a week. So many things happened.

0:00:55 Jenessa: In the blink of an eye.

0:00:57 Thomas: We are, of course, recording this part two. Make sure you listen to part one. Really interesting breakdown of ultimately how we have gotten where we are with Fourth Amendment, data privacy, search and seizure, all that stuff. But you got to listen to that part one for the foundation. And now we're in part two. So we're getting the thrilling conclusion. I guess. Where is it going to go today?

0:01:20 Jenessa: Today, we're going to finish up U.S. v. Jones a little bit of Sotomayor back in 2012, being very prescient about where we're Going technologically and all the problems that could come with it.

0:01:29 Thomas: Flying cars. No, I'm just kidding. OK.

0:01:36 Jenessa: Luckily, nobody said that the one thing that's just never happened and never going to happen despite being promised to us through our whole childhood. No. And then And there's two cases, Carpenter v. U .S. in 2018, and, okay, I'm going to try this name, Chatry? Chatry. C -H -A -T -R -I -E. Seems Frenchy.

0:01:43 Thomas: Yeah, it's just not very efficient. But anyway. Anyway.

0:01:59 Thomas: Yeah.

0:01:59 Jenessa: Chatry, Chatry... Something like that.

0:02:02 Thomas: Who knows? OK.

0:02:04 Jenessa: This was just decided like a month ago, and they're both addressing slightly different versions of tracking your cell phone all over the place. The court is really trying to figure out what they are supposed to do here. How do we apply everything we just talked about?

0:02:07 Thomas: Oh, right. Last week.

0:02:26 Jenessa: Yeah, last week with, okay, so you have these reasonable expectations of privacy, and your digital privacy is very important, and they should not be snooping around in your house, and they shouldn't be using thermal imaging.

0:02:33 Thomas: Right. But you also have this third party aspect, right?

0:02:42 Jenessa: Mm-hmm, right. So what happens when your data is actually held by somebody else, like your cell phone company or Google? No, it's a problem for us.

0:02:51 Thomas: Doesn't sound good. Wow. Wow. Hmm.

0:02:56 Jenessa: Yeah, I'm excited to talk about how our Supreme Court justices are mixed in their understanding and their ability to wrap their heads around this, but they're doing okay with ultimately ending up in the right place.

0:03:06 Thomas: Oh, OK. Well, I'll be curious to know how much of the issue is misunderstanding technology versus ideology. I'm kind of kind of curious about that. We also have that wild card of Clarence Thomas, as we kind of talked about thinking one thing one year and then another thing another year. Apparently, I'm going to be keeping an eye on that in the in your story. But, yeah, I'M excited to get to the thrilling conclusion.

This is so fun, old -fashioned deep dive stuff. Love it. Well, maybe we'll take our first break and get right into it. So, uh, get the goodies, avoid the ads at patreon .com slash law everybody. You know the spiel. That's a great place to be. The book club, which probably already happened since you're hearing this, and I bet it was great. It was so much fun. It's been really cool that we're getting the authors of the books. It's like It's the best kind of book club. You're not just reading a book, you're reading a book and then getting to hang out with an author who, uh, who wrote it. So get to get on patreon .com slash law All right, we'll take a break and then we will get to the thrilling conclusion of how we probably have not as much privacy as we would like to have. Okay.

0:03:52 Jenessa: Barely.

0:04:14 Ad: [Ad break 1 — ad music]

0:04:14 Thomas: So we still had some stuff to clear up from Jones, I think, you

0:04:17 Jenessa: Yeah, so like the top line is just this easy thing of like, oh hey, by the way, Katz said reasonable expectation of privacy, it's not just about trespass. Don't forget that trespass is still a thing. If the police trespass in order to snoop on you, they needed a warrant, and you could just leave it there. Done. Okay, easy. There is that concurrence that says four of us, two of whom are still on the court, happen to think that it's not so much about that, and it's more about what you used to be able to do in the past, and this technology is letting you do way too much, way too easily, with like zero resources, and that's really the distinction.

0:04:31 Thomas: Said.

0:05:01 Thomas: Now, let me ask you, can feel free to, uh, turn this down if it's not important. Was it that the five justice majority didn't agree with that? Or did they think like, we don't even need to get to that? Was it like, oh, we're fine with trespass because that covers it? Because I feel like that would be a key distinction if they're just like, hey, we only need to do this. We don't need to go into the rest of the thing, versus if they said, well, no, actually we don't really go for that thing over there where you're talking about like the length of time and kind of that reasonableness. We don't agree with that, but we just think it's about trespass.

0:05:03 Jenessa: Here.

0:05:20 Jenessa: Oh yes, I think they are contradictory, in that for the trespass people, if a trespass happened, two seconds of snooping is too long. If a trespass didn't happen would they agree that like time limits matter? Yeah I think probably and like we're gonna see how some of the justices do move around on that

0:05:43 Thomas: Okay, right. Yeah, that's what I'm, that's what I am asking. Yeah. Hmm.

0:05:58 Jenessa: When trespass isn't involved.

0:06:00 Thomas: But if that's true, I don't know why they wouldn't have all kind of signed on to one decision then.

0:06:04 Jenessa: One would think, right?

0:06:06 Thomas: So maybe it's not

0:06:07 Jenessa: Actually why don't I play you a clip from that? Scalia is going to give us a little

0:06:09 Thomas: True. Oh, from that one. Okay. In the orals or in the

0:06:19 Jenessa: Preview of perhaps why he would not love to join on to a reasonableness in the oral argument. Yeah.

0:06:21 Clip: I have to give a little prologue to my question. When wiretapping first came before this Court, we held that it was not a violation of the Fourth Amendment because the Fourth Amendment says that the people shall be secured in their persons, houses, papers, and effects against unreasonable searches and seizures. And wiretappings just picked up conversations. That's not persons, house, papers and effects.

0:06:48 Thomas: Okay, wow. Wow, that's stupid.

0:06:49 Clip: Later on we reversed ourselves, and as you mentioned, Caps established the new criterion, which is, is there an invasion of privacy? Does, are you obtaining information that a person had a reasonable expectation to be kept private? I think that was wrong. I don't think that was the original meaning of the Fourth Amendment, but nonetheless it's been around for so long we're not going to overrule that. However, it is one thing to, to add that privacy concept to the Fourth Amendment as it originally existed. And it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant. And it seems to me that when that device is installed against the will of the owner of the car on the car, that is unquestionably a trespass. And thereby rendering the owner of the car not secure in his effects.

0:06:53 Thomas: Oh.

0:07:49 Jenessa: So I think that reveals a lot of his thinking on this. First of all, he thinks Katz was wrongly decided. We should not have reasonable expectation of privacy.

0:07:51 Thomas: Good. Yeah. Yeah, yeah, because of the stupid literalist bullshit of originalism, because it's not an effect or blah blah. Yeah, like

0:08:00 Jenessa: Mm hmm. Yeah, but then he just very casually, well, you know, it's been around forever. We're not going to overturn that. Fine. I can't tell if he's being sarcastic.

0:08:09 Thomas: Okay. Yeah, which is a step better than our current originalist. No, I don't think he is.

0:08:16 Jenessa: Sarcastic. He's often sarcastic, but I think he meant that.

0:08:19 Thomas: Yeah, I think he meant it.

0:08:19 Jenessa: I think it was just being serious, like, fine, whatever, that's the rule now. But I think he really hit the nail on the head there. Is you're asking me to allow trespasses? Yikes. Like, that definitely conflicts with what we originally understood, and you're narrowing people's rights with that, and I don't agree with that, so I think that is probably the major point of contention: is on the one hand he is writing something that just does not talk about the reasonable expectation of privacy, and maybe people who really cared about that did not want to sign on.

0:08:39 Thomas: Yeah. Hmm. Interesting.

0:08:55 Thomas: Hmm.

0:08:56 Jenessa: I would have been like Sotomayor who did sign on tempted to say I agree and also and that's what she did. So clearly she was deciding though not to say everybody says you need a warrant. I know.

0:09:02 Thomas: Yeah. Yeah, because it's 9-0, right? Yeah, yeah.

0:09:10 Jenessa: But why do you need a warrant? What will be the controlling opinion, the thing that is precedential? She signed on to that and then she wrote this concurrence that is like it gets its own section of the Wikipedia. It's very important. She says two things that are often quoted. One is about just how revealing it is. GPS surveillance, not a cop tailing you for a little bit, but surveilling your every movement. She says that people take trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by -the -hour motel, the union meeting, the mosque, the synagogue or church, the gay bar, and on and on.

0:09:50 Thomas: She was just naming things that her fellow justices do. I

0:09:57 Jenessa: You know, like when you put that list together, all of a sudden it's like, Like, dang, yeah, seeing all of that paints quite a picture of the life of somebody. And any one of those you can go, yeah you shouldn't feel ashamed but we all know you don't want somebody seeing you. Pick a thing on that list, everybody can come up with something where you might do it but you don't wanna anybody to know about it. Including like the union meeting. That is often a place where political persecution can happen if people know you're going there.

0:10:06 Thomas: Bet. Yeah.

0:10:20 Thomas: Right. Yeah.

0:10:30 Thomas: Or your boss. Yeah.

0:10:31 Jenessa: Yes, absolutely. It's a huge problem. She says that is really important and is suggesting this issue that we are looking towards a future where this kind of surveillance becomes quick, easy, cheap, and is just going to start happening all over the place. There's quite a few clips of her and the other justices saying things like this.

0:11:00 Thomas: This is pretty early into her tenure, and it's pretty important.

0:11:07 Clip: It's going to be dramatically different in the next step. There are now satellites that look down and can hone in on your home, on a block, in a neighborhood.

0:11:14 Thomas: Concurrence.

0:11:18 Clip: I don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place. So give us a theory. Is that okay for the police to access those cameras and look at you moving from place And if that's okay, then why is this not okay? What is your theory of your case?

0:11:29 Thomas: Right.

0:11:47 Jenessa: That's her thinking about this well in advance. You know, we did not have a flock camera yet all on every corner, but starting to talk about it. What if the police, again, we're talking about without a warrant, so they could do it to anyone for any reason just because they're freaking curious. Is it okay? Kagan is going to ask some similar questions.

0:12:09 Clip: I ask Justice Alito's question in a different way. Suppose that the police could do this without ever committing a trespass. Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing a trespass. Would the constitutional issue we face be any different? As I assume, that's because of manufacturers doing it or because Congress has legislated it, Justice Kagan. Under either circumstance, people would know. They would know that their privacy rights have been taken away. Whether that would be possible to go through Congress, I seriously doubt. But people would know. In this particular case, Antoine Jones had no idea whatsoever that his possessory interest in that property was about to be deprived by the government in a meaningful way to allow them to get information they couldn't have otherwise have gotten.

0:12:15 Thomas: Yeah. Wow. Yeah.

0:13:00 Jenessa: Yeah, I find that answer interesting. Like, well, people will know about it. So like that, then all of a sudden it's okay. Because the cultural norm is to know that you're being snooped, which

0:13:12 Thomas: So It's like the expectation of privacy. He's saying you wouldn't any longer have an expectation of privacy because you would know that you're being tracked in that

0:13:21 Jenessa: Is a seems like a very circular way to get there to me of like, well hang on a minute. It.

0:13:25 Thomas: Way. Yeah, well, but he's also on the side of this wasn't okay.

0:13:31 Jenessa: This guy took a very specific position about the trespass issues. He made the argument that a trespass is a problem. So he's making the argument there that, well, there wasn't a trespass and you shouldn't get too worked up about this because you would know about it. So that's fine. He's arguing for this very narrow holding, which is ultimately what Scalia did for the case. They didn't expand too much.

0:13:35 Thomas: Right. Hmm. Right. Wow.

0:14:01 Jenessa: There's a similar thing from Kennedy.

0:14:03 Clip: Lots of communities have, including Washington, cameras at intersections on stoplights. Suppose the police suspected someone of criminal activity, and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for five days. I think that would be allowable, Your Honor. I think that will be permissible, Your Honor.

0:14:33 Thomas: No.

0:14:35 Clip: First of all, you don't have an invasion. You don't have a physical intrusion, unlike this case. You have a targeted invasion. It'sover a long—it's overa wide space. And it seems to me that—it seems tome you have to answer my question yes to be consistent with what you've said earlier. As I said earlier, you can have an occasional video camera out there. People understand nowadays that there may be video cameras out in public space, but we don't have any – society does not expect to view it as reasonable to have the equivalent of a million video cameras following you everywhere you go.

0:15:12 Jenessa: So I think this is really what prompted Sotomayor to respond, to say, hey, there could be a million cameras tomorrow. Kennedy already seems to be indicating, I don't love this idea that just a couple of cameras at the stoplights could hypothetically be used to put my route together. And he's like, well, you know, there's only some. Like, you know, the GPS is like metaphorically the equivalent of a million cameras. We are working towards a future where there are a million cameras. So now what? And that is exactly what Sotomayor is going to say to us in 2012 when, you know, I had just graduated college. I think you still needed a .edu to get a Facebook. Like maybe, maybe they had stopped that at that point.

0:15:56 Thomas: Yeah, that wasn't like 2009 or something. I want to say 2008. Yeah.

0:16:01 Jenessa: So four years earlier, like it's, it was a simpler time, not that much simpler, but simpler. What I think is important here, a lot of justices, including some of the older justices asking that question of like, hang on, hang on, what about this? What about this, what if this happened? What if that happened? And they're imagining technologies that did happen that are currently happening right now. What is this 14 years later, we are grappling with exactly what they hypothesized then could become an issue. And they wrote, I know you need a warrant to do this, but really Sotomayor's concurrence is the one that gets the most attention.

0:16:04 Thomas: Oh. Yeah. Yeah.

0:16:45 Jenessa: We bring all this together and what happens. In 2018, Carpenter v. U .S., there is this thing called Cell Site Location Information, CSLI. Your cell phone company collects this. Basically, they triangulate your location based on cell tower pings.

0:17:02 Thomas: It's pinging.

0:17:04 Jenessa: You know, mostly they're getting this to figure out roaming charges was the initial issue here. Like, hey, you're not on our tower. You are on somebody else's tower and we need to know that. That's, I think, not an issue anymore.

0:17:08 Thomas: Yeah. Wow. Yeah. Old school.

0:17:19 Jenessa: Very old school. When it was initially envisioned now, you know, they're still collecting it, but it's like, you Know, So that triangulation is important for where are you? Where should we route calls? I think they might be using that for 911 routing. I'm not sure. But the cell phone companies collect this. What do they think about the fact that on the one hand, we have this long line of cases that is saying general, you know, right to privacy.

And then we have Jones that says a GPS tracking you around is not acceptable. And on the one hand, the majority says trespass is an issue. But we have a concurrence of four people, including Alito and Kagan, who say also the amount of time, 28 days to track somebody is way too much. And Sotomayor's concurrence says a very similar thing where she says, hey, we have to be really worried about the level of surveillance that's happening in our society.

But on the other hand, we had this third party doctrine thing. The cell phone company is collecting this CSLI. They know where you are. So can't we, without a warrant, just go ask the cell phone company, which phones pinged off of that tower? Or did your phone ping off of this tower, this suspect? Whose towers did they ping off? Where were they? If the cell phone company knows it, can't we just have that, right? So we have to pull these two things together.

On the one hand, third-party doctrine, you would think, it's not my information, the cell phone company's information. I know, or I guess according to the court I should know, that this is being collected. On the other hand, don't I have a reasonable expectation of privacy per Jones? I, like, you are monitoring me. It's even worse than a GPS. You're monitoring me all over the place all the time, and the biggest issue is really this is collecting everywhere I am all the time and, and storing it. So when the cops just decide, I want to know where this person was a month ago, like it's not

0:19:40 Thomas: Hmm.

0:19:40 Jenessa: Really, oh, I wanna know where they were for three days. You can limit the warrant like that, but the data exists for like a huge time window that they could just go get. And if they don't need a warrant, they could Just go look at it for all of the time windows, those, you know? Now what? How do we reconcile this? 5 -4. This is a reasonable expectation of privacy. You need a warrant to get CSLI. How do we pull this together? The majority, it's written by Roberts. It's joined by Kagan, Sotomayor, Ginsburg, and Breyer. Something I find interesting is to look at not just dissents, but who joined them and in what way. Do we have a kind of of consensus about what the alternative position would be. So like in Jones, we had four people on a alternative way of deciding this. Here, we have a dissent by Kennedy joined by Thomas and Alito. Okay, so that's three people who all agree on a reason you could have gone the other way. We have a dissent by Alito joined by thomas. We have descent by thomass joined by no one.

0:19:56 Thomas: Right.

0:20:07 Thomas: Hmm. What?

0:20:52 Thomas: So we have a whole bunch of... oh boy.

0:20:53 Jenessa: Yes. Yes. And then we have a dissent by Gorsuch, joined by no one. And I would not call it a dissент because he ends up ultimately, I think, agreeing that your CSLI should be private. He just dissents for a really dumb reason. To focus on the majority first, what does Roberts say? And of people still on the court, Sotomayor and Kagan are signed on to this. They could have just said this whole third party thing is dumb, but they didn't.

He says, listen, compared to the checks that are just like a moment in time, and they are a bank record, and they are a record of interactions you had, or the pen register where it was just the numbers you dialed, it wasn't the contents of the call, this thing, there's two major factors that separate the difference between CSLI and all this other third-party stuff. The first thing is just the general nature of it. It is incomparably revealing.

The checks you write, I mean, I think they're pretty revealing, but like, you know, you can only paint so much of a picture from who they're paying for what, who, the number that you dialed. The CSLI is like everywhere you've

0:20:58 Thomas: Wow. Huh.

0:22:07 Jenessa: Been for like, if you don't need a warrant, it's everywhere you're been for, like, forever.

0:22:07 Thomas: Yeah, it's an even tinier constable.

0:22:14 Jenessa: Yeah, basically. So we have a qualitative difference in the nature of the data, the nature of the invasion. And then second, they say it's not really information that you truly shared. At the end of the day, you handed a check to somebody, you dialed a number and sent it to the telephone company. Here, you don't really have a choice to have. The cell company isn't like, by the way, with your consent, we would like to know. Like, they're just doing this.

0:22:27 Thomas: Hmm. Yeah. Yeah, or if they are, it's click wrap, and you couldn't, you know, you'd have to agree to even have a cell

0:22:47 Jenessa: Mm -hmm. Right. And so really really, that is the fundamental finding of this is that similar to Riley, you can't just search cell phones. This court has pretty much agreed a cell phone is no longer optional.

0:23:03 Thomas: Phone.

0:23:04 Jenessa: It might be reasonable to say to me, like, just get rid of your Facebook if you don't like what they do with your stuff. It is not reasonable to says to me just don't have a cellphone. It's not. And if the The answer is either do not have a cell phone or you will have the CSLI constantly collected on you, then obviously it has to require a warrant because it's not reasonable to tell people just don't do this if you don't like it.

0:23:12 Thomas: Hmm. Hmm. Right.

0:23:35 Jenessa: That is the majority holding. It's qualitatively different in how invasive it is, and it's just not the same in the way that you share it. Like, it's not a record that once belonged to you that you hand it off to someone else voluntarily. Like, not really. So that's five people. Roberts, Sotomayor, and Kagan say this of people still on the court. Thomas and Alito dissent. To the extent I can wrap my head around what they're trying to say is really just about the third party thing. Like, It's just not your records. That's it. Gorsuch. Per usual, I give him zero credit forever after the birthright citizenship thing. Like, he's lost all credibility. It's done. He's a political actor. The end. Like, I don't ever take me to be giving him credit ever since that. He can apologize for that and then I'll give him credit again. That said, he is a political factor, but he is also a political activist.

0:24:34 Thomas: Hmm. Yeah.

0:24:34 Jenessa: He is a weird political actor sometimes. He is on a tear with this. He, like Scalia, believes that Katz was wrongly decided and we should never have done this reasonable expectation of privacy thing. But he thinks the third party doctrine should be completely overturned and is also bullshit, which I'm really struggling to disagree with. Really, all of his decisions, I think, suffer from a lack of an editor.

0:24:58 Thomas: Huh. Yeah. Yeah.

0:25:05 Jenessa: He just is so,

0:25:05 Thomas: No, he's too brilliant. You can't contain the

0:25:09 Jenessa: I really think that's it. He can't, like, take feedback and it's so obvious because there are parts of this that that are just straw man arguments that I'm like, no one believes the thing you're arguing is stupid. I don't know the most extreme person on the opposite side does not believe what you are saying.

0:25:21 Thomas: Brilliance. Hmm. Right.

0:25:30 Jenessa: This is just like a waste of paper. And there's, it's obvious why no one is signing on to this, not even in part.

0:25:36 Thomas: To your point, why is it a dissent if he thinks you should get rid of the third party rule? How is he still on the other side of it?

0:25:40 Jenessa: Thomas, oh my God. I'm going to flip to the page. He thinks what we should do instead is we should go back to an old school trespass, and also it matters if it's your person's papers and effects, and that effects used to be defined very liberally to just mean like any of your personal property, which I think is a good way to think of it.

0:25:56 Thomas: Hmm. Yeah, I was gonna say that, and, and, well, I, I think I commented that, that when Scalia was talking about his thing, like effects, like, clearly the founding fathers, if you're trying to go to that, like, it's always the two-pronged thing with originalism like, for one it's dumb, but also it's like, I feel like you could easily disagree, like originalist intent might have, like, clearly they're trying to communicate something with, like, person, papers, private things, and in fact, like, it's a list of things like they're trying to, like, give you more rights over things, and they can't list out every single thing, and so now 250 years later, yeah, effects, I feel like your phone is for sure that.

0:26:06 Jenessa: Yes. Yes, yes, right, right. Like grab me a 1700s dictionary and look up the word effects plural. I'm sure it won't address this issue it's

0:26:47 Thomas: Yeah. Right, and it's like the vibe of the thing, so I guess, and it's not, I guess, sorry, I should correct, so they did consider a phone, that, right, but this is the, the data, the, like, the geo whatever data around the phone, maybe. So is your every every single whereabout your effects? Well, maybe this is still a reason why Gorsuch is dumb, because he thinks that should cover this.

0:26:52 Jenessa: Yes mm Mm-hmm, yeah.

0:27:12 Jenessa: He does, he thinks that counts, it's your stuff, to be fair. Like, what he's saying here, I think, is, like, crazy progressive, and I'm so on board for some parts of this. He's like, your, your digital data, you can have digital ownership.

0:27:15 Thomas: Huh? Yeah.

0:27:28 Thomas: Yeah. That's a good point. Oh, yeah. Okay. I guess I see that. My only worry was, wait, if he's saying this is bad just because of that, does that mean that someone could just spy on you for any length of time and know exactly where you're going forever? Hmm.

0:27:44 Jenessa: So that's the problem, right? Is, like, you would think he dissented here, which must mean he agrees with that, but he, he didn't though. Like, he did, but he didn't. What, here's what happens: he says the way we should do this, forget reasonable expectation of privacy, also get rid of this third party, that's done. If it is yours, if we can truly say that the only reason this other person is holding it is, like, he uses, like, old-timey terminology, but, like, they're a bailey, that, like, you know, think of what, of course

0:28:09 Thomas: Of course, of course he would do this in the most annoying way possible, but a sure.

0:28:13 Jenessa: Of course, but, like, you pay bail, that's not the court's money, now they can't go gamble with it, it's yours, they're just holding it for you, and it's a very similar thing of, like, sometimes other people are holding your stuff, but it's your stuff. I pay my landlord rent, it's their money. I give them a security deposit, that is my money the entire time until

0:28:27 Thomas: Hmm. All right. Right. They steal it from you by claiming you made something too dirty. Yeah. We all know that's the American way.

0:28:39 Jenessa: Yeah, right, of course, um, yes, so what he's saying is we should go back to that. If it's really, it's yours. Yes, it may be in the possession of another person, but for all intents and purposes, it is yours.

0:28:53 Thomas: Hmm, God damn it. This asshole is making a little bit of sense.

0:28:57 Jenessa: I know. I hate it. And he's like, that's the rule you should really go with. The third party can be in possession of your stuff and therefore give your stuff to the cops. What the hell are you people talking about? And also, if we believe in the third party thing, he's, like, That's a bright line rule. Like, how are you doing this? Well, well, the third party can, but like not if it's bad though, not if it's serious. How do you reconcile this? CSLI is just like too important to give up? A third party has it. A third party created it.

0:28:59 Thomas: Yeah, hmm. Yeah hmm.

0:29:27 Jenessa: It's not even mine. But he says, if you think of it this other way, it really is mine. This other person is holding it on my behalf. It belongs to me. It doesn't belong to them. Then actually, you could decide it that way all based on property rights. He says a whole bunch about like, hey, you know that garbage case that everybody hates that's. It's like, you don't have a reasonable expectation of privacy in the garbage because raccoons go through it. And it's like not the cops, though.

0:29:45 Thomas: Oh, right. Right. Does everybody hate that case? I always thought that like kind of made sense, but okay. Yeah.

0:29:56 Jenessa: It kind of does. I kind of hate it. I'm like, if I found my neighbor going through my stuff, not looking for like a rug I threw out that they might repurpose, but looking opening my mail, I'd be like, ew, get out of here.

0:30:07 Thomas: Right. Right, right. Good point. That's kind of a, almost a different analysis maybe in a way.

0:30:15 Jenessa: Yeah, the rule of ick is different here. He was like, I think most people's expectation of, like, reasonable expectation of privacy would be like, do not go through my garbage, gross, and that this rule would work there because, like, it's still mine. Or like, there was a rule of, like, he wants to get rid of reasonable expectation and still say, like, it is not yours because it is on the stoop. Now, granted, if you live in New York, it is on your stoop, it's fair game for

0:30:17 Thomas: Yeah. Okay. Yeah.

0:30:33 Thomas: Well, he wants to get rid of that reasonable expectation of privacy, right? Yeah.

0:30:46 Thomas: Yeah, well, that is the rule, right, if you put it outside or whatever. I've done the bar exam question on this. Like if your garbage can is out on the street or whatever, versus if it's like in your backyard kind of thing, it actually makes a difference on this rule, right?

0:30:51 Jenessa: Everybody that is a great example of, like, the average person probably does expect privacy there and we've just kind of said it's not.

0:31:09 Thomas: Hold on. If he wants to get rid of the expectation of privacy, is he just saying that, hey, this works in this case because when it's on your stoop, it's yours. And when it'S out on the sidewalk, it'S not yours. And it'S all about this ownership thing.

0:31:11 Jenessa: Reasonable, yes.

0:31:21 Jenessa: Honestly, I don't even know how he would go on it. He's more just using it as an example of, like, everybody thinks Katz is working, but, like, it isn't because everyone expects their garbage is private and we just decided that's not unreasonable.

0:31:29 Thomas: Oh, oh, that's why he's bringing it up.

0:31:34 Jenessa: But, like, is it though? He brings up a case where, like, they said you don't have a reasonable expectation of privacy in the air over your house, and therefore a helicopter 400 feet over your house didn't violate the reasonable expectation of privacy when the cops did that. And his quote is, "Try that on your neighbor." Like, just get a helicopter and float 400 feet over the house and snoop on them in their pool. Like, no, your neighbor would be like, get out of here, weirdo.

0:31:54 Thomas: Yeah.

0:32:03 Thomas: Yeah, but then I think what bothers me about that is that it's not really Katz, that's, it's that you disagree on what the expectation of privacy is. You

0:32:12 Jenessa: Haha, yes, uh, that is my concern as well. A lot of the examples he brings up, I agree with him. My problem is he's trying to say the problem is that it's impossible, reasonable people just can't agree on this. I think the court just sometimes came to bad answers and maybe we should just over, sometimes the court licked boots and they shouldn't have done that. Like that's the real answer, right?

0:32:29 Thomas: Don't know about that, yeah, yeah. Yeah, huh, interesting. So I think the reason no one agreed with him then is because probably it's a "yes, and." Like, you wouldn't, yes, there's stuff that he's saying that's correct, but you wouldn't want to also get rid of the expectation of privacy. It's like, let's take the good but then without

0:32:49 Jenessa: Exactly. He could find an ally here.

0:32:53 Thomas: The bad.

0:32:53 Jenessa: He Could say, if you write this majority just slightly different for me, if you could just add this part about third party doctrine has problems. You could also decide it this other way. He could make an ally, but he's just, his ego, like he clearly took no feedback. There's so many parts of this. There's a part where he uses an analogy and then he goes, and worse what if, and worse, what if? And at one point he says, and worst, what if the cops took the letter from your friend without consent? And I'm like, okay, but that that would be illegal. Like, that'd be illegal under any rule already. Like that's not the third party rule requires consent from the third party.

0:33:26 Thomas: Yeah, right. Yeah.

0:33:32 Jenessa: Like and if you had a single editor read this, they'd be like, OK, you got to dial it back.

0:33:35 Thomas: I know he has clerks and stuff. What the hell? Oh, weird.

0:33:39 Jenessa: I don't know. Do the clerk. I don't know what the problem is, but there's just things in there that I'm like, I mean, I'm no expert on this and I catch.

0:33:42 Thomas: Weird. I could see him being such a pain in the ass, arrogant prick that like none of his clerks want to really disagree with him. I could say that being it.

0:33:51 Jenessa: Mm hmm. It's just miserable to disagree with him. I think that might be it, it because his ultimate dissent here is: this guy should have raised, in addition to the usual, he should have said, "And also, I have property rights in these things," but he didn't, so he waived it. I dissent: you don't have privacy rights in CSLI.

0:34:15 Jenessa: Because you should have argued you have property rights. I would have agreed that you have property rights, but you, you waived that, and I don't agree with Katz's reasonable expectation of privacy, and there wasn't a trespass.

0:33:57 Thomas: Yeah. Huh. Oh, what the? This is stupid. So the reason it's a dissent is because the person in this particular case didn't anticipate that he would have a totally different theory of how it works, and therefore would have, should have, like, just in case, been like, "I'm also going to assert this thing in case somebody thinks that's how it works." Okay, well, that's stupid.

0:34:29 Jenessa: It's really, really bad. Yep. Correct. Precisely. Which is why, that's exactly why in Chantry in 2026, someone will raise that just in case Gorsuch wants to get on board. Read it all.

0:34:54 Thomas: Yeah. Oh, wow. Hey, Yeah, lawyers are sharp, I get it. You do what you can. Yeah. Oh,

0:35:01 Jenessa: And that is why Gorsuch will flip from a dissent to concurring only in the judgment

0:35:05 Thomas: Oh, on this other one you're talking

0:35:08 Jenessa: On this other one.

0:35:13 Ad: [Ad break 2 — ad music]

0:35:14 Jenessa: In Carpenter, 5-4, but really 6-3. Five of them say you have a reasonable expectation of privacy in this. Why does third party doctrine not apply? It's because it's, God, it's just so invasive. And like, really, you didn't consent to the creation of this record only in so far as you have a cell phone, which is really not optional.

0:35:35 Thomas: About, yeah, yeah.

0:35:37 Jenessa: Kennedy, Thomas, and Alito are just like, I mean, third-party doctrine. And then Gorsuch is like, I agree third -party doctrine as it stands should go that way, which is why it should go. It should be gone. It should be overturned. But also Katz should be overturned. And also you could have argued property rights, but you didn't. So, so go to jail.

0:35:49 Thomas: Hmm. Yeah.

0:36:00 Jenessa: It's a mess.

0:36:01 Thomas: That's the one we just talked about, you're saying, and now we're on

0:36:02 Jenessa: Yes, that's all Carpenter. What happens differently in 2026? 6, Chattree v. United States. It's a nearly identical issue of looking at your cell phone's location, but instead of the CSLI is created by those pings, created by the cell phone company, stored by the phone company. Instead, Google has location services.

0:36:26 Thomas: Okay, I'm gonna say instead it's Pokemon Go and you're volunteering to, no, I'm just kidding, right? Because it's the thing you opt into. Ah.

0:36:29 Jenessa: Honestly, it might as well be correct. Will

0:36:35 Thomas: And that's the key distinction. Okay.

0:36:37 Jenessa: It be an important distinction? Kind of no. Yes.

0:36:40 Thomas: Oh, that's very interesting. Okay.

0:36:43 Jenessa: So what happened here is what's called a geofence warrant. Huge shout out to my friend David Souther, who is an excellent software engineer and spent the time. Yeah, yeah.

0:36:54 Thomas: Oh, if that's your friend, that's, I've been reading that patron name forever. I didn't realize. Neato.

0:36:58 Jenessa: Oh, yeah, we have been good friends since long before I started on the show. He's a very good friend of mine and an excellent software engineer and explained this stuff to me to the extent that I need to, for legal purposes, understand this. Here's what happens. So there's a bank robbery and they don't have a ton of leads.

0:37:18 Thomas: I always love a case that starts with a bank robbery. Fun. Okay. Not a ton of leads. Yeah. Wow, in this day and age, huh?

0:37:20 Jenessa: Yeah, right? Yup. Yeah. Yeah! They interview some people and like the best they get is, you know, there's a guy who kind of looks suspicious. He seems to have approached from this direction while on his cell phone and go into the bank. And maybe that's our guy.

0:37:34 Thomas: Hmm. Okay. Wow, because no one ever does that.

0:37:44 Jenessa: Yeah, I, you know, there's always a thing that I feel, it appears things are left off often of like, why was this guy suspicious though? And the cops just seem to not disclose that in these court cases.

0:37:56 Thomas: Yeah. Okay, so maybe there's something else going on we don't know about. Okay.

0:38:00 Jenessa: Perhaps, I'm not quite sure. They get what's called a geofence warrant, they go to Google and they say, hey, so everybody who either has an Android or has Google apps on their iPhone, or I don't know, for some reason was carrying their laptop around that had Google apps or whatever, you have been at some point prompted to turn on location services. It would have been prompted when you first started up the device or installed the app. If you have an Android phone, it would specifically say to you, if you don't turn this on your phone will not work properly, like please please pretty please turn it on, and it'll prompt and prompt and promptly.

Only a third of people with these apps have actually turned it on Yeah, however Jackson points out this may be skewed because in China it's illegal to have that and that may be where the majority of cell phone holders exist so that data may be a bit biased. What it's doing is roughly every two minutes, it is pinging, where are you? And it creates a timeline feature that a lot of people find, you know, oh, great. Where was that restaurant I went to two weeks ago? I can't remember the name of it.

You could use that to look back. You can edit the data. You can delete the data, you can download it. They make a big point of this to be like, it's your data. It's your beta. It doesn't belong to Google. There is a privacy agreement, which I'm sure nobody read, but it is actually probably what you were hoping for. Google may themselves use it for marketing

0:38:44 Thomas: Turn it on. Oh. Wow. Huh. Uh, interesting. Wow.

0:39:38 Jenessa: Purposes to push an ad at you. They may use metadata from it, so anonymized, more group data, but the personal, like, non-anonymized data, they will not share it with anyone else. They will not sell it. It's just yours, with the exception, of course, of a lawful government request. Gorsuch makes the point in the oral arguments. He's like, I mean, that's redundant. They couldn't write in the contract, we won't comply with a warrant. They have to. That's the law. So essentially they are promising the user, this is yours. This is private. For the most part, it's been collecting that and people have been using it to figure out what restaurant they went to.

And Google's been using it to push an ad at their own app users and otherwise keeping it private, and then otherwise we've had a problem. What police officers started doing is going, hey, can you, uh, I want to see it. I want to know where this person was. One of the ways they can do it is, you know, if they already know the name of the person, there's like easier ways to just get warrants and track people down. But if, if you're like, there was a person in a location, now what? I want to know everybody who was here. Tell me.

Google worked out a thing with them where they were like, hey, what if we didn't turn over like piles and piles and piles of data to you? Here's what we're going to do. We're going to come up with a like three-step process. So first you're going tell us, and it'll be in the warrant, what is the location, a radius around it. So like, you know, a circular space and a time window.

And we will check and we will tell you everybody was there of people who have a device with timeline turned on, which is a narrower group of people, but who was in that window. And then step two, you know, we'll give you that list and it's anonymous. All you've got is like a list of the pings. They were in this location for this amount of time and you can see where they traveled. And then on step two you can pick out some people.

You can pick a bigger time window and we can also go outside the geofence. You want to know for two hours around the crime where did they go anywhere. We'll give it to you anonymous again and then you look at those people and tell us who are the people you want. Be more specific. We will actually at that point give you names and emails and phone numbers. The first time Google received a geofence warrant was in 2016. 2016. Two years later in 2018, they had gotten 982 of them. And in 2020, there were 11,000 geofence

0:39:40 Thomas: Wow. Right. Wow. Wow,

0:42:18 Jenessa: Warrants pushed to Google to do this.

0:42:20 Thomas: That's a big increase.

0:42:22 Jenessa: Yeah. Finally, we have a lawsuit where somebody goes, hey, is that cool? That seems like a lot. Critical, critical thing here. When you say to Google who was there. How does Google do that? The justices, some of them have no idea.

0:42:27 Thomas: Yeah.

0:42:40 Thomas: Yeah, well, it's a series of tubes.

0:42:43 Jenessa: They are very much in series of tubes land. What is happening is because that is all stored on an individual, it's not like in a pile somewhere. It's in your account. So the only way to know who was there is to check the accounts of every single person with timeline turned on. There is no other option, which is millions of accounts.

0:42:51 Thomas: Hmm. Hmm. Yeah?

0:43:07 Jenessa: And again, if you send a warrant, Google is now deputized. They are the government. So all of those accounts were exposed in the Fourth Amendment sense. They were also exposed in the security sense. Somebody opened their account. I don't know the severity of the security risk there, but there is a security exposure happening, 11,000 times in 2020, every single account had to be checked.

0:43:16 Thomas: Yeah. Right?

0:43:33 Thomas: Well, yeah, 11,000 times that they're checking all these accounts, Right. So it's like astronomical.

0:43:38 Jenessa: Exactly. All the millions of accounts got checked 11,000 times in 2021. And then step two, you go, now I can tell you who was there and where they went. And I'm not telling you who, but I'm telling you these are the accounts that were there and where they went. Now you're allowed to pick some and say, where did did they go for two whole hours, three whole hours around there, now outside the geofence?

0:43:41 Thomas: Right. Right, right. OK. Jeez.

0:44:03 Thomas: Yeah.

0:44:04 Jenessa: And then more and more and I want to play for you as an example, Kagan will lead us down a little garden path to actually understand that that is how it works.

0:44:16 Thomas: Hmm.

0:44:17 Clip: Would that mean all database searches are searches for Fourth Amendment purposes? I think this is a unique case because Google's sense of route really is structured like a row of virtual safety deposit boxes, individual accounts, it's indexed by account, which means you have to put in your own credentials to get to your account, and that doesn't get you to anyone else's. So it's exactly like a bank with safety deposit boxes, except it's in the cloud.

So does everything depend on how a company organizes its information? I don't think everything depends on that. I think that this is a unique case, because the fact that Google organizes data that way is not some kind of arbitrary engineering decision. It really is essential to the security of a system with lots of private accounts to index them by account. So the The technologist, Amicus Brief, I think has a good analogy here.

It says that it's not arbitrary that a hotel divides different people into different rooms as opposed to stacking all of the bunk beds in the lobby. Like a hotel, which divides people into certain places, it's logical to have walls between them. And in this case, there's virtual walls as opposed the physical walls. But I don't think the fact that Google could have constructed the system in a completely different, and from our perspective, inappropriate way should affect the analysis.

0:45:26 Jenessa: That is, and again, talking to a software engineer friend, that is a great analogy to say, from the software engineering perspective, yes, they are stored in separate accounts. To check each account, you had to put a key in the lock. You had to check. That wasn't one search. That was millions of individual searches. From a legal perspective, great analogy with the hotel, because you have privacy rights in a hotel room almost like your home.

0:45:46 Thomas: Huh. Right?

0:45:55 Jenessa: It's not arbitrary to put the beds in rooms instead of in the lobby. It is not an arbitrary engineering decision. Google intentionally puts your data in your account and my data in my account and keeps them separate. It's for a reason. So he gets around that issue with Kagan. On the other hand, you can hear Kavanaugh mess this up bad.

0:46:19 Clip: So suppose we have a murder and we know, all the police know, is that the murder was at a restaurant, a particular restaurant. And so the search is for, the request is for everyone who dined at that restaurant in a two-hour period and for the names of those people.

0:46:40 Thomas: So the thing he's misunderstanding is you have to you're not asking the restaurant.

0:46:45 Jenessa: No, right.

0:46:46 Thomas: You're actually asking every single you're checking every single person to see if they were there. Yeah, right, right? Yeah. Yeah.

0:46:51 Jenessa: This would be like checking everyone's pockets for a receipt to see if they went to the restaurant. This is not, you can't ask the cloud above the bank who was in the bank. It's not stored in the cloud, literally, it's stored differently, and he doesn't get it, but then he does side with the correct side on this, so I guess his failure to understand the technology ultimately did not cause the

0:47:02 Thomas: Yeah. That's pretty important distinction. Right. Well, did someone correct him later or no? Okay. Well yeah, maybe his clerks or something, who knows?

0:47:19 Jenessa: Problem. No, not in the oral argument, they didn't. Maybe later somebody was like, "My dear..."

0:47:26 Thomas: Or did his decision like rest on a different logic or something?

0:47:29 Jenessa: Well, so Kagan delivers the opinion here. She's joined by Robert, Sotomayor, Kavanaugh, and Jackson. This is Carpenter. It's Carpender on steroids. It is even more personal. And this whole idea that Carpinter was the CSLI, the cell site, yes, yes. This is exactly Carpinder, but worse.

0:47:43 Thomas: Remind me what that was. Sorry. I'm bad with the names of the CSL. Oh, the cell tower thing. Yeah, yeah. Okay. Pretty much that. Yeah Yeah.

0:47:54 Jenessa: The fact that you clicked yes on ClickRap, I don't care about that. I really don't. What matters here is that you and Google had an agreement that this was private. So again, you need a warrant. We're not saying you can never, ever do this. Maybe you can do this, we're going to send that to the lower court.

0:47:59 Thomas: Yeah. Mm hmm. Mm Hmm. Hmm.

0:48:16 Jenessa: Back to the circuit, please, to decide if this scope is out of control. But the government got a warrant to do this and showed up at the Supreme Court and said, you know what, maybe we didn't even need a warranty. And they're all like, I'm sorry. You think you could just snoop on this without even a warrant? Gorsuch comes in and he's like, hey, isn't this the same click wrap for my email, Gmail, Google Photos, Google Calendar? And the attorney's like yes, it's the same Click Wrap.

0:48:47 Jenessa: That has to matter. When we pull it all together, those five say reasonable expectation of privacy. This Click Wrap doesn't change that. It's still your data, Gorsuch will concur in the judgment. He says exactly what he said in Carpenter. He has to do a bullshit thing. He repeats what he's said in carpenter. And he just so sassy and shitty is like, well, but the court is on the right way. They basically said property rights. They said it's your data. So I guess we're going in the right direction is how he ends it.

0:48:28 Thomas: Uh, yeah. Yeah, you still have to do a bullshit thing. Okay. You can't not get maybe they would agree with it. If not for the other bullshit he's doing. So I don't

0:49:27 Jenessa: That's what I mean, is if he could just say, could you guys just say, instead of, like, alluding to it, could you say the words "property rights"? I would sign on that would be great, but he has to say Cats is dead and third party doctrine is like dead, like he can't sign a half measure, so he can't get anyone. He's shooting himself in the

0:49:29 Thomas: Yeah. Which is fine, except unless you're blaming them for not, it's like you can't just pick the one thing, like if they're not agreeing with you, it's because of all the other stuff, right? I mean, anyway, Barrett

0:49:58 Jenessa: Foot. Exactly. Yeah, try to join on a p- like just compromise a tiny bit it so that you can be part of a majority. Barrett dissents and just says, "I think you signed the click rap and that's good enough." The youngest justice is like, "I don't know, you click the button. I don' know."

0:50:10 Thomas: Wow, what an asshole. Huh.

0:50:17 Jenessa: Alito writes a dissent that is like we should have just dismissed this as improvidently granted. Thomas joins part one. Barret joins parts 2B, 2C1, and 2C2. The good Good news is the people who don't agree that you have privacy rights here, they cannot agree on why. There is not a consensus about why you don't have privacy here. So there's not a clear path to overturn this among the justices who disagree. So that is good news.

0:50:36 Thomas: Okay, I see what you're saying

0:50:53 Ad: [Ad break 3 — ad music]

0:50:53 Jenessa: The judges, some of them really get the technology. Some of them really don't, but they ultimately got the ick about having their emails creeped on.

0:51:00 Thomas: Okay, yeah, well, it might be that ACB gets the technology, but just as a bootlicker or something, I don't know. I don't know how you could be a human on this earth and be like in favor of click rap, be like, "Well, you clicked the bullshit." Like, come on. Are you kidding me? Maybe you're right. Maybe it is that she doesn't understand or something. I don't know. It's hard to say.

0:51:22 Jenessa: If you want to end it on a very funny clip of her,

0:51:26 Thomas: Oh, please.

0:51:27 Clip: I mean, I'm just looking at the policy, and it says that Google may share non-personally identifiable information publicly and with our partners, advertisers, publishers, rights holders, specific partners to collect information from your browser or device for advertising purposes. So Google shares aggregated information, like how many people searched for the word YouTube last year and things like that. But doesn't it share location information, too? I mean, I feel like I get ads when I'm in particular places. I mean I need to check my location services settings plainly. Not that I'm going to commit crimes, but it seems to me like Google – I suggest you have IT do it. It does seem to me that Google does give your information away.

0:52:15 Jenessa: Good place to go out on a much older Sotomayor giving her the advice of, dear God, go to IT. You obviously don't know what you're talking about. She doesn't know if she has the location services turned on, probably like most people. Yeah, who knows about Barrett, but overall we're coming together and maybe if somebody just explains cell phones better to Barrett, maybe we could flip her.

0:52:27 Thomas: Yeah.

0:52:39 Thomas: Yeah, maybe. I don't know.

0:52:41 Jenessa: 6-3 said this is private.

0:52:44 Thomas: Well, that's a good, good outcome. So this is a good thing, right? Pretty good.

0:52:48 Jenessa: Yeah, yeah, I think we're doing okay for the Fourth Amendment part.

0:52:51 Thomas: It's one of the top, like, couple areas of the Supreme Court right now. One of the top 2 good things? I don't know. There's not very many, so we'll take it.

0:52:57 Jenessa: Yeah. They could be better, but they could be worse. Yeah

0:53:04 Thomas: All right. Well, what a fun breakdown and very comprehensive. I really enjoyed that and feel like I understand it a lot better. So thanks so much, Jenessa. I Really appreciate it.

0:53:12 Jenessa: Good talking to you.

0:53:49 Jenessa: We have a dissent by Thomas joined by no one. And then we have a dissent by Gorsuch joined by no one per usual. I give him zero credit forever.

0:53:56 Thomas: We all know that's the American way. God damn it. This asshole is making a little bit of sense.