The Supreme Court ruled Monday in Chatrie v. United States that when law enforcement used a geofence warrant — directing Google to produce location data for every cellphone near a Virginia bank during a 2019 robbery — they conducted a “search” under the Fourth Amendment. By a 6-3 vote, the Court sent the case back to the lower court to determine whether the search was “reasonable.” Justice Kagan, writing for the majority, held that an individual retains a reasonable expectation of privacy in cell phone location records even when a third-party tech company holds them.
The holding matters. What matters more is what the Court left unanswered.
At oral argument, Justice Neil Gorsuch asked the question the majority declined to resolve: if the cloud holds everything — your emails, photos, financial records, and location history — and you “voluntarily” shared all of it with Google, Amazon, or Apple, does the third-party doctrine eliminate Fourth Amendment protection for all of it? The government said yes. Gorsuch found that alarming. He was right.
The third-party doctrine traces to two cases from the 1970s. In United States v. Miller (1976), the Court held that bank customers have no Fourth Amendment protection in records they share with their banks. In Smith v. Maryland (1979), phone numbers dialed — transmitted to the phone company to complete the call — carry no constitutional protection because they were “voluntarily conveyed” to a third party. The doctrine made rough sense when sharing information with a third party was a discrete, deliberate act. That logic doesn’t survive contact with 2026 when sharing data with third parties isn’t a choice you make — it’s the condition of participation in modern economic life.
January 6 is the sharpest illustration of what geofence warrants do at scale. The FBI served Google with a geofence warrant covering location data in and around the Capitol from 2 p.m. to 6:30 p.m. on January 6, 2021. Google recorded 5,723 devices in or near the Capitol during the events. After narrowing results to those most likely to have breached the building, Google delivered the FBI the names, phone numbers, and email addresses associated with 1,535 accounts. People who attended the rally on the Mall, walked past the Capitol, or were simply in the neighborhood that afternoon were swept into the initial data pull — before the government made any individualized determination that they’d committed a crime.
There’s a detail that should trouble anyone inclined to trust the precision of this tool. Google itself acknowledged in court filings that its location data is only a “probabilistic estimate,” with each data point carrying an estimated 68% confidence interval that the user was actually within the shaded area. That’s not a minor margin of error when the result is a law enforcement visit, a federal investigation, or a prosecution. A conservative making this argument isn’t running interference for January 6 defendants — he’s applying the same constitutional standard he’d demand for anyone else. The Fourth Amendment doesn’t have a partisan exception.
I’ve spent thirty years as a registered investment adviser serving ultra-high-net-worth families. When the SEC wants my clients’ financial records — brokerage statements, account histories, trade confirmations — it doesn’t need a warrant. It sends an administrative subpoena to the custodian. No judge reviews it. No probable cause is required. My clients often don’t learn about the demand until the investigation is well advanced. The Miller doctrine is the constitutional basis for that practice, and it’s never been revisited in light of the fact that every financial relationship in America now runs through institutional intermediaries who hold everything the government might want.
KEY LAW ENFORCEMENT SEARCH TOOL FACES SUPREME COURT SCRUTINY
Chatrie doesn’t change that. The majority anchored its holding in Carpenter v. United States (2018), which extended Fourth Amendment protection to cell-site location information. What neither Carpenter nor Chatrie does is address Gorsuch’s broader question: does the third-party doctrine survive as applied to the full architecture of cloud-based modern life? The majority acknowledged the question and declined to answer it. Law enforcement using geofence warrants will now need to demonstrate probable cause and particularity — a meaningful constraint. But the SEC can still pull your financial records without a warrant. Federal investigators can still reach your email metadata through administrative process.
The Fourth Amendment was written to protect papers and effects from government inspection without judicial authorization. Your financial records are your papers. The fact that they travel through intermediaries before arriving in your account history doesn’t change what they are — it changes only who holds them, which is precisely what the government has exploited since 1976. Chatrie is a step. The cloud question is the destination. A Fourth Amendment that protects your movements but not your finances isn’t a coherent constitutional doctrine. It’s a carve-out that shrinks every year as more of life migrates to infrastructure the government can reach without a judge’s approval.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.