Once in a while there is a court ruling on the Fourth Amendment that just makes my jaw drop. The Fifth Circuit had such a ruling last Friday, United States v. Jamarr Smith. The case creates a split with the Fourth Circuit on one important issue, and it creates another split with the Colorado Supreme Court on an even more important issue.
The new case is about the Fourth Amendment limits of geofence warrants, which are warrants to access location information for users who have opted into having Internet providers retain location history. The Fifth Circuit makes two important holdings. First, accessing any amount of geofence records is a search under an expansive reading of Carpenter v. United States. That's the issue that creates the split with the Fourth Circuit in United States v. Chatrie. As I noted just a few weeks ago, Chatrie held that accessing such records is not a search in the first place, at least if the records sought are relatively limited in scale. The Fifth Circuit expressly disagrees.
Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can't gather these kinds of online records at all, in other words, even with a warrant based on probable cause. This holding conflicts with a recent ruling of the Colorado Supreme Court, People v. Seymour, and more broadly raises questions of whether any digital warrants for online contents are constitutional.
