Brent Skorup and Laura Bondank
Our digital records contain some of our most private information—such as personal emails, messages with a spouse, bank records, GPS location history, Google and ChatGPT queries, and credit card transactions. These reveal a tremendous amount about our families, habits, businesses, and even state of mind. Yet federal and state laws make it relatively easy for regulators and law enforcement to obtain our sensitive digital records.
Many federal and state judges are aghast at the volume of digital information law enforcement obtains in routine investigations—over a terabyte of one man’s pictures, emails, and personal communications in one recent case. Police are also now ordering Google to help them compile lists of suspects based on search or location histories. In Chatrie v. United States, the Supreme Court will rule on the constitutionality of these latter “geofence warrants.” These warrants, typically issued to help law enforcement develop leads, require Google to identify all devices in a given area during a specific time window.
Several amici briefs, including ours, explored the important Fourth Amendment question in Chatrie: Who owns the digital records a person creates—the customer? Or Google, which stores the Location History records?
More than Business Records
Several amici contend that the records at issue are not Google’s to hand over because they belong to the user who created them. The Policing Project at NYU School of Law, led by Prof. Barry Friedman, offers an excellent version of this property-based argument. In its amicus brief, it explains that Google Location History is not an ordinary business record but something more analogous to records a person might keep in a filing cabinet at home:
The Fourth Amendment protects people from government searches of their “papers.” Google users’ Location History fits comfortably within that text.… [Users] possess core property rights in their Location History, including the right to use, enjoy, dispose, and exclude—and their contractual relationship with Google made clear that Google was just a bailee.
This framing matters. If Location History is functionally the user’s “papers,” then the government’s action is not a routine retrieval of records from a third party—it looks more like a seizure and search of constitutionally protected materials.
Tech Companies Weigh In
Notably, some companies that actually collect and store user records have filed briefs in the case.
Because the case involves Google’s Location History service, Google’s brief is especially noteworthy. Google doesn’t address the property arguments squarely but makes clear that these are not mere business records. Location History, Google says, functions as “a digital diary of locations that users ask Google to record and store.” Google therefore, urges the Court to reject the third-party doctrine in this context:
The third-party doctrine simply does not apply when the user retains substantial dominion over data entrusted to a custodian for safekeeping.
X Corp. makes a complementary argument from a different angle. Its brief says:
Terms of service that promise to protect the privacy of information shared by users with their service providers should be treated as the functional equivalent of “no trespassing” signs on a possession perhaps more valuable than real property—our personal information (“papers” or “effects”).
Terms of service constitute legally enforceable contracts and give rise to property and privacy interests worthy of Fourth Amendment protection.
User Ownership Is Supported by the Constitutional Text
Fourth Amendment scholar James Harper presses the property argument further, urging the Court to abandon the open-ended Katz framework altogether and return to the Constitution’s text. A “search,” Harper explains, is simply an effort to find something—and what Google was compelled to do here fits that definition precisely.
Harper also makes the often-overlooked seizure argument: “This Court should recognize taking a copy of data as a seizure because it violates the right to exclude.” In his view, digital information is simply the modern form of “papers and effects.”
Other amici reinforce the property-based approach from different angles. The NetChoice brief relies on bailment principles:
Similar to a letter trusted with the postal service, individuals’ location data created and stored with NetChoice members and other online service providers should be constitutionally protected from examination and inspection under bailment principles.
In other words, companies often merely hold a user’s data and records on the user’s behalf. Americans for Prosperity adds that the Fourth Amendment protects both tangible and intangible property and that storing information with third parties does not extinguish constitutional protections.
The Question the Court Should Not Avoid
Taken together, these briefs converge on a single theme: whose records are they? Digital records are created by users at their direction, for their benefit, and under their control. Google does not store location history as a business record—it provides safekeeping for users’ digital diaries. That distinction is the difference between an owner and a bailee, between a warehouse and a filing cabinet, between a business record and a personal paper. A user’s digital records are their “papers and effects,” and compelling Google to hand them over is a search—one that requires a specific warrant, not a dragnet.
The Katz reasonable-expectation-of-privacy test cannot get the Court there. Articulated in an era of telephone booths and pen registers, it is unworkable when applied to cloud-stored location histories, AI query logs, and years of aggregated financial data. Worse, it asks the wrong question—whether privacy norms have shifted enough that a person can no longer “expect” protection—rather than whether the government had the lawful power to obtain the records in the first place.
The stakes in Chatrie are therefore higher than any single geofence warrant. If the Court sidesteps the ownership question—or reaffirms a broad third-party doctrine—it will have ruled, in effect, that storing records with a third party forfeits constitutional protection over them. In the digital age, that would undermine the very purposes of the Fourth Amendment. The amici have laid out a coherent, historically grounded alternative. We hope the Court agrees.
We’re grateful to Kanan Abdiyev for helpful research assistance for this post.