Chatrie v. United States

JUSTICE GORSUCH, concurring in the judgment.¶

I agree with the Court’s judgment that the government’s examination of Okello Chatrie’s Location History data amounted to a search for purposes of the Fourth Amendment. But respectfully, I would reach that conclusion by a different route.¶

I¶

To decide whether a Fourth Amendment search took place in this case, the Court once again invokes a test first advanced in a solo concurrence in Katz v. United States , 389 U. S. 347 (1967). Under that test, a search occurs when the government intrudes on an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.’ ” Id. , at 361 (Harlan, J., concurring).¶

If Katz has become a familiar feature of our law, it seems to me no more persuasive for it. Consider just a few of its problems, beginning with this: It has no basis in the Constitution’s text or history. The Fourth Amendment’s protections do not depend on “the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination.” Carpenter v. United States , 585 U. S. 296, 391 (2018) (GORSUCH, J., dissenting). Instead, the Fourth Amendment speaks in more concrete terms, protecting an individual’s person, house, papers, and effects from unreasonable searches and seizures. Ibid. No surprise, then, that it’s hard to find anything like the Katz test in the law leading up to the Fourth Amendment’s adoption—or anything much like it in this Court’s jurisprudence before the 1960s. See Carpenter , 585 U. S., at 391–392 (GORSUCH, J., dissenting).¶

Even if I could overlook that problem with Katz , I still wouldn’t know how to apply it. As the Court has candidly admitted, it has never been able to identify a “single rubric” that might “definitively resolv[e] which expectations of privacy are entitled to protection.” Carpenter , 585 U. S., at 304 (majority opinion). Maybe Katz poses an empirical question, tagging reasonable expectations of privacy to those privacy expectations “people actually have.” Carpenter , 585 U. S., at 392 (GORSUCH, J., dissenting). Or maybe the question is a normative one, asking what expectations reasonable people “ should . . . have.” Ibid . In truth, nobody knows and, either way, this Court is the wrong body for the task. We aren’t equipped to make empirical assessments about what most Americans think. Nor is it our job to enforce our own normative judgments, as opposed to those embodied in the Constitution and laws. Id ., at 392–394.¶

If this weren’t trouble enough, we’ve also adorned Katz with an equally indefensible qualification called the third party doctrine. Under its terms, the Court has held, an individual maintains no “reasonable expectation of privacy” in information he shares with others. Accordingly, the government may freely search a person’s papers and effects without triggering any Fourth Amendment scrutiny so long as they are entrusted to the care of someone else. See Smith v. Maryland , 442 U. S. 735, 743–744 (1979); United States v. Miller , 425 U. S. 435, 442–443 (1976).¶

Much as with Katz itself, this Court has never offered a persuasive justification for its offshoot. Carpenter , 585 U. S., at 389–390 (GORSUCH, J., dissenting). Nor do I see how it might. Do we seriously mean to suggest that most¶

Americans think they have no “reasonable expectation of privacy” in records held for them by their banks or pharmacists or doctors or technology companies? If not, on what authority might we rule that the American people should not reasonably expect privacy in materials like those? Really, the third party doctrine amounts to little more than a “doubtful application of Katz that lets the government search almost whatever it wants whenever it wants.” Id ., at 391.¶

As it did eight years ago in Carpenter , the Court today largely ignores these problems. It simply declares that Mr. Chatrie enjoyed a reasonable expectation of privacy in his Location History because authorities could have used it to create “a virtual panopticon.” Ante, at 21. And it tells us that the third party doctrine does not apply to this case because Mr. Chatrie did ''not truly shar[e]'' his Location History with Google. Ante, at 25–26 (quoting Carpenter , 585 U. S., at 315 (majority opinion)).¶

Count me unpersuaded. Why does tracking Mr. Chatrie’s movements digitally over an hour or two invade his reasonable expectation of privacy when an officer tailing him for the same length of time would not? See United States v. Knotts , 460 U. S. 276, 281–283 (1983). Why is Location History data Mr. Chatrie voluntarily shared with Google not “truly shared” when a person’s bank records are? See Miller , 425 U. S., at 440–443. Does the Court just mean to give Katz ’s third party doctrine a quiet burial by suggesting today that any information shared over “smartphones” using “apps and services” falls outside its reach? Ante, at 28 (internal quotation marks omitted). And what does any of this have to do with the Fourth Amendment’s terms anyway? Even if Katz and its battered third party doctrine may straggle on today, they leave our Fourth Amendment jurisprudence about where the Court’s obscenity doctrine stood in the 1960s: We know a “reasonable expectation of privacy” (and an exception to the third party doctrine) when we see it.¶

Rather than employ Katz and its third party doctrine, I would take a different approach. To decide whether the Fourth Amendment is in play, I would consult its terms, asking first whether Location History qualifies as one of Mr. Chatrie’s papers or effects, and then asking whether the government searched those papers or effects. This traditional approach remains very much part of our law. See Byrd v. United States , 584 U. S. 395, 403 (2018). Indeed, we have expressly recognized that Katz and its progeny “supplemen[t] rather than displac[e]” traditional Fourth Amendment principles. Carpenter , 585 U. S., at 403 (majority opinion); see also Soldal v. Cook County , 506 U. S. 56, 64–65 (1992); United States v. Jones , 565 U. S. 400, 406407 (2012); Florida v. Jardines , 569 U. S. 1, 11 (2013).¶

Thanks to Katz ’s prominence today, of course, litigants sometimes fail to press more traditional Fourth Amendment arguments. See, e . g ., Carpenter , 585 U. S., at 406 (GORSUCH, J., dissenting). But whatever his faults (possibly including bank robbery), Mr. Chatrie has not forfeited that line of attack in this case. In fact, he begins his brief before us by contending that the Fourth Amendment is implicated here precisely because the government enlisted Google to search his “papers and effects.” See Brief for Petitioner 15, 33.¶

I agree with that assessment. Set aside whether Location History data qualifies as among Mr. Chatrie’s “papers,” and consider whether it at least constitutes one of his “effects.” Based on the evidence the parties have put before us, it appears the word “effects” was understood at the time of the Fourth Amendment’s adoption to embrace most any kind of personal property. See, e . g ., M. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due¶

Protection, 125 Yale L. J. 946, 985–987 (2016) (“[E]arly sources indicate that the term ‘effects’ meant ‘personal property’ in common and colloquial usage”); L. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1301 (2016) (effects meant “personal property or possessions,” including “commercial items and goods”); Brief for United States 32 (suggesting that “effects” excludes certain real property like so-called open fields (citing Oliver v. United States , 466 U. S. 170 (1984))).¶

As I see it, Mr. Chatrie’s Location History data qualifies as his personal property. To appreciate why, start with this. As Google puts it, and no one seriously disputes, Location History serves as a “diary” or map “of a person’s travels.” Brief for Google LLC as Amicus Curiae 3–4. At the time of the events in question, Mr. Chatrie’s agreement with Google referred to Location History as “ your ” (meaning, the user’s) “information.” 1 App. 72 (emphasis added). Under the parties’ agreement, too, Mr. Chatrie was free to “review” and “edit” his location data. Id. , at 19. He was even free to export or delete that data “from Google’s servers at will.” Ibid . Beyond all that, Google promised to protect his information against “unauthorized access, alteration, disclosure, or destruction.” Id ., at 71. Put simply, Mr. Chatrie had the rights to enjoy, manage, alter, dispose, and exclude others from what amounted to an electronic diary or map of his travels. And as someone who held that many “sticks in the bundle of rights . . . commonly characterized as property”—including the “most treasured” and “essential” right to exclude—he has a strong claim that the Location History data was his personal property. Cedar Point Nursery v. Hassid , 594 U. S. 139, 149–150 (2021) (internal quotation marks omitted).¶

Next, notice what statutory and case law have to say on the subject. The investigation of Mr. Chatrie unfolded in Virginia. That State’s Computer Crimes Act expressly describes “computer data” as a form of “[p]roperty.” Va. Code Ann. §18.2–152.2 (2021). Altering or making an unauthorized copy of computer data can constitute the crime of “computer trespass” (another property law concept). §§18.2152.4(A)(3), (6). And the State provides a right to sue for anyone “whose property or person is injured” by violations of the Act (again suggesting a right to exclude). §18.2152.12(A).¶

Nor is Virginia some outlier. In Texas, “computer . . . data” can constitute “[p]roperty.” Tex. Penal Code Ann. §33.01(16) (West Cum. Supp. 2025). State law likewise criminalizes “knowingly access[ing] . . . a computer, computer network, or computer system . . . with the intent to obtain or use a file, data, or proprietary information” for a prohibited purpose. §33.02(b–1)(2)(C) (West 2016). Once more, as well, those whose “property has been injured” by certain computer crimes may bring a “civil cause of action.” Tex. Civ. Prac. & Rem. Code Ann. §143.001 (West 2019). Georgia has a similar regime. See Ga. Code Ann. §§16–993(b), (g) (2018) (criminalizing “[c]omputer [t]respass” and providing a private right of action for such violations). And, it appears, so do many other States. See Brief for Cato Institute as Amicus Curiae 14–15, and n. 5 (“Today, more than half of states . . . treat digital records and data as personal property,” and “[m]any” of them “make it illegal for private actors to access or convert another person’s digital data”); see also, e . g ., People v. Seymour , 536 P. 3d 1260, 1273 (Colo. 2023) (finding that “law enforcement’s copying of [the defendant’s] search history meaningfully interfered with his possessory interest in that data”); Integrated Direct Marketing, LLC v. May , 2016 Ark. 281, p. 6, 495 S. W. 3d 73, 76 (“[U]nder Arkansas law, intangible property, such as electronic data, . . . can be converted”); cf. Thyroff v. Nationwide Mut. Ins. Co. , 8 N. Y. 3d 283, 292–293, 864 N. E. 2d 1272, 1278 (2007) (holding that “electronic records that were stored on a computer and were indistinguishable from printed documents” are “subject to a claim of conversion”).¶

To be sure, pursuant to its agreement with Mr. Chatrie, Google stored his Location History data on its servers and was free to use it for certain purposes. Brief for United States 34–36. But an individual need not have “complete ownership or exclusive control” before he can assert a Fourth Amendment challenge against the search of real property. Carpenter , 585 U. S., at 401 (GORSUCH, J., dissenting). Instead, we have long recognized, a “tenan[t] [or] resident family membe[r]” who does not enjoy “fee simple title” in a house has a sufficient interest in it to give rise to a Fourth Amendment right. Ibid . And I fail to see why the law should differ markedly when it comes to personal property. If you “[t]oss your keys to a valet at a restaurant” or “[a]sk your neighbor to look after your dog while you travel,” you may entrust your personal property to another and license him to do certain things with it, much as Mr. Chatrie did with his Location History data. Id ., at 399. But that hardly means that property is no longer yours. Ibid .¶

Nor does it matter that those who wrote the Fourth Amendment might not have imagined an electronic diary or map of one’s travels. As with other laws, the terms found in the Fourth Amendment carry their original public meaning and can bear more applications than its drafters might have expected or intended. See id. , at 400. So just as the First Amendment protects speech over the internet today no less than it did speech delivered in the town square in 1791, it should hardly come as a surprise that the Fourth Amendment might protect as personal “effects” electronic diaries of one’s travels as it always has more traditional ones. See Kyllo v. United States , 533 U. S. 27, 40 (2001) (observing that a “search” of a home can take place not just by physical entry but also by the external use of thermalimaging devices).¶

Because Mr. Chatrie’s Location History data is his effect, it is subject to the Fourth Amendment’s restrictions when the government searches it. So, was there a search? The government conducts a search when it “ ‘look[s] over or through for the purpose of finding something.'' Id. , at 32, n. 1 (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)). Under our precedents, none of which the government asks us to overrule, a search equally transpires when government officials enlist private parties in that task. See Skinner v. Railway Labor Executives’ Assn. , 489 U. S. 602, 614 (1989) (Fourth Amendment “protects against” searches “effected” by a private party “if the private party acted as an instrument or agent of the Government”). And that’s exactly what occurred here: The government conducted a search both when it compelled Google to rummage through Mr. Chatrie’s data at “step one,” and when it later examined that data for itself and demanded more data yet from Google at “step two.” See ante, at 7–8 (describing the stepwise process in which the searches were conducted in this case).¶

*¶

I might have hoped that the Court would have pursued a more traditional approach to the Fourth Amendment today. But look carefully and you will see hints of it at work even in the Court’s opinion. Why is the Court so protective of Location History data, email, and electronically stored photos and calendars? See ante, at 25–26. Because, it turns out, “a user reasonably understands” all those things “as his own.” Ante, at 25. Put another way, they are his effects. And why does the Court hold Mr. Chatrie’s effects protected by the Fourth Amendment even though a third party stores them? Because, the Court says, those effects remain his “even though [they are] stored on Google’s servers.” Ibid . Put another way, entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours. While more work may lie ahead to bring coherence to our Fourth Amendment jurisprudence, perhaps this is a start.¶