Amicus Curiae Brief — Okello T. Chatrie, Petitioner v. United States

No. 25-112

In the Supreme Court of the United States

OKELLO T. CHATRIE, PETITIONER

v.

UNITED STATES, RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR NETCHOICE

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL TASKE

NETCHOICE

1401 K Street, N.W.

Suite 502

Washington, DC 20025

(202) 845-8817

ROBERT A. VAN KIRK

AMY MASON SAHARIA

CHARLES L. MCCLOUD

Counsel of Record

ATTICUS W. DEPROSPO

BRETT V. RIES

WILLIAMS & CONNOLLY LLP

680 Maine Avenue, S.W.

Washington, DC 20024

(202) 434-5000

lmccloud@wc.com

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT

................................................................................................ 2

ARGUMENT ....................................................................... 5

Under a Property-Based Fourth Amendment Approach,

Individuals Have a Protectable Privacy Interest in Their

Location Data Property Stored with Online Service

Providers. .............................................................................. 5

A. The Court Should Apply Property-Based

Bailment Principles to the Fourth Amendment. .. 5

B. Bailment Principles Confirm that the Fourth

Amendment Protects Individuals’ Property

Rights in their Location Data. .............................. 10

CONCLUSION .................................................................. 16

APPENDIX A .................................................................... 1a

(I)

II

TABLE OF AUTHORITIES

Cases:

Page(s)

Carpenter v. United States,

585 U.S. 296 (2018) .........................................2-10, 13-15

Ex Parte Jackson, 96 U.S. 727 (1878) ................................ 6

Katz v. United States, 389 U.S. 347 (1967) ..................... 4-5

Kyllo v. United States, 533 U.S. 27 (2001) ........... 3, 8-9, 14

Riley v. California, 573 U.S. 373 (2014) ............... 2-3, 9, 16

Smith v. Maryland, 442 U.S. 735 (1979) ..................... 4, 13

United States v. Jones, 565 U.S. 400 (2012) ......... 2-5, 7, 14

United States v. Miller, 425 U.S. 435 (1976) .......... 4, 12-13

Constitution and Statute:

U.S. Const. amend. IV ............................... 1, 3-10, 12-13, 15

Health Insurance Portability and Accountability

Act of 1996 (HIPAA),

Pub. L. No. 104-191, 110 Stat 1936 ............................. 12

Other Authorities:

James L. Buchwalter, et al., Bailment Contract

as Governing Rights, Duties, and Liabilities

of Parties, 8 C.J.S. Bailments § 36 (2017).................... 6

Laura K. Donohue, Functional Equivalence and

Residual Rights Post-Carpenter: Framing a

Test Consistent with Precedent and Original

Meaning, 2018 Sup. Ct. Rev. 347 (2018) .................... 12

Other Digital Content (Copyright.gov),

https://www.copyright.gov/registration/otherdigital-content............................................................... 12

J. Story, Commentaries on the Law of Bailments

§ 2 (1832) ......................................................................... 6

INTEREST OF AMICUS CURIAE *

Amicus NetChoice is a national trade association of

leading e-commerce and online businesses. NetChoice

members share the goals of promoting free expression

and free enterprise online while ensuring their users’ data

is secure. NetChoice members also provide a diverse array of online services that depend on users trusting that

their location data is secure when provided, including the

Google Location History service at issue in this case. A

list of NetChoice’s members is included in Appendix A to

this brief.

NetChoice has a significant interest in securing constitutional safeguards for users’ location data because its

members provide various online marketplaces and services that rely on users’ trust to foster innovation and economic growth. NetChoice also believes that safeguarding

fundamental property and privacy rights for users’ location data is essential to facilitating a trustworthy Internet.

Although individuals entrust NetChoice’s members with

their data, that should not mean that users automatically

lose their Fourth Amendment privacy interests in that

data. Stripping users’ data of Fourth Amendment protections will chill free expression and free enterprise. A clear

rule acknowledging the privacy interest in user data will

also provide critical guidance to NetChoice’s members in

determining how they may respond, if at all, to government requests for user data.

*

Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief.

(1)

2

INTRODUCTION AND SUMMARY OF ARGUMENT

We live in a digital age. Emails and texts have replaced snail mail. Sentimental photographs once stored

in shoeboxes and photo albums are now stored in the

cloud. Sudden thoughts are jotted in a notes app, not on

a notepad. Videos are recorded on Snapchat and TikTok

instead of a camcorder. Documents once stuffed in a filing

cabinet are now saved on Google Drive. Financial information historically tracked on a ledger is monitored with

the JPMorganChase app. Millions of times each day, individuals are sharing and storing personal information

online with NetChoice members.

Cell phones have been a key driver of these profound

changes. For the nine in ten Americans who own a

smartphone, Pet.App.64a, their phones and the services

they provide have become such a “pervasive and insistent

part of daily life” that they might be considered “an important feature of human anatomy,” Riley v. California,

573 U.S. 373, 385 (2014). These hand-held devices allow

individuals to “keep on their person a digital record of

nearly every aspect of their lives.” Id. at 395 (citation

omitted). And quite a precise one. With user permission,

Google can use Location History data to track user movements on average every two minutes, and in certain circumstances, down to a three-meter radius, or even across

floors of a building. Pet.App.271a-272a, 274a. That history data can be used to generate a “detailed, encyclopedic, and effortlessly compiled” “comprehensive dossier of

[one’s] physical movements.” Carpenter v. United States,

585 U.S. 296, 297, 315 (2018).

In the government’s hands, this digital treasure trove

of sensitive information can lead to exactly the kind of “arbitrary exercises of police power” that the Founders

aimed to prevent. United States v. Jones, 565 U.S. 400,

3

416 (2012) (Sotomayor, J., concurring). For example, one

state supreme court has already ruled that the government can execute reverse keyword warrants, which require online service providers to identify users who have

done a particular search within a particular period, without running afoul of the Fourth Amendment, despite the

breadth and depth of information such searches can reveal. Pet. 22. And, if individuals knew Big Brother was

always watching, it would “chill[] associational and expressive freedoms.” Jones, 565 U.S. at 416. “Only the

few” who do not participate in the digital age could escape

this “tireless and absolute surveillance.” Carpenter, 585

U.S. at 312.

Fortunately, the Fourth Amendment is not silent

about this “seismic shift[] in digital technology.” Id. at

313. This Court has long been tasked with “ensur[ing]

that the ‘progress of science’ does not erode Fourth

Amendment protections.” Id. at 320 (citation omitted).

Otherwise, individuals are left “at the mercy of advancing

technology.” Kyllo v. United States, 533 U.S. 27, 35-36

(2001). Put simply, “a new balancing of law enforcement

and privacy interests” is needed in light of this evolving

digital landscape. Riley, 573 U.S. at 407 (Alito, J., concurring).

This Court need not look far for a solution. The answer is “already reflect[ed]” in this Court’s propertybased approach to the Fourth Amendment. Carpenter,

585 U.S. at 400 (Gorsuch, J., dissenting). Users’ privacy

interests in their location data stored with NetChoice

members—a common practice in today’s digital age—can

easily be protected by common-law bailment principles.

This Court has long recognized that when bailors entrust

their property with bailees, they retain their Fourth

Amendment property interests and the privacy interests

4

attached to that property. It should similarly hold that

when individuals create a modern-day travel log of their

movements and store it with an online service provider

(here, Google), they have temporarily bailed their property, but they retain their property and privacy interests

in that property. This fact—that a user retains control

over their Location History data and the information contained therein—distinguishes this case from Carpenter v.

United States, 585 U.S. 296 (2018), and this Court’s previous third-party doctrine cases concerning government inspection of business records, in which customers had no

property interest. See generally United States v. Miller,

425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735

(1979).

To be clear, amicus agrees with petitioner that Carpenter dictates the conclusion that the government’s collection of users’ Location History data here was a search

under the reasonable-expectation-of-privacy test established in Katz v. United States, 389 U.S. 347 (1967), should

this Court apply that test. Pet. Br. 22-31. However, amicus urges this Court to adopt a property-based bailment

approach as an independent basis for Fourth Amendment

protection. Doing so would provide what Katz cannot: a

stable, administrable rule grounded in traditional property concepts that would not shift based on the ever-evolving societal view of what constitutes a reasonable expectation. Lower courts could simply look at whether the individual retains the hallmarks of ownership over the location data held by an online service provider—e.g., by reviewing the relevant user agreement or terms of service.

Further, the Katz test “has never been the only way” to

prove a Fourth Amendment interest, Carpenter, 585 U.S.

at 405 (Gorsuch, J., dissenting), and Katz did not “narrow

the Fourth Amendment’s scope,” Jones, 565 U.S. at 408.

5

By treating common-law bailment as an independent basis for establishing Fourth Amendment interests, this

Court can avoid altogether the “two amorphous balancing

tests” associated with the Katz test and its related thirdparty doctrine. See Carpenter, 585 U.S. at 397 (Gorsuch,

J., dissenting).

ARGUMENT

Under a Property-Based Fourth Amendment Approach, Individuals Have a Protectable Privacy Interest in Their Location

Data Property Stored with Online Service Providers.

A property-based approach that looks to the law of

bailment is faithful to both the Fourth Amendment’s text

and original meaning. Its adoption would steer this

Court’s Fourth Amendment jurisprudence back to the

“property-based concepts that have long grounded” this

Court’s search-and-seizure analysis. Carpenter, 585 U.S.

at 322 (Kennedy, J., dissenting); see also Jones, 565 U.S.

at 405. And just as importantly, users’ personal data

would be better protected. Bailment principles confirm

that individuals do not lose their privacy interests just because the data is temporarily stored, with the user’s permission, with an online service provider.

A. The Court Should Apply Property-Based Bailment

Principles to the Fourth Amendment.

1. This Court has long recognized “the significance of

property rights in search-and-seizure analysis,” Jones,

565 U.S. at 405, and property-based concepts “have long

grounded the analytic framework that pertains in these

cases,” Carpenter, 585 U.S. at 322 (Kennedy, J., dissenting). Bailments are one of those core concepts. “[A] bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, expressed or implied, to conform to the object or purpose of the trust.” Id.

6

at 399 (Gorsuch, J., dissenting) (quoting J. Story, Commentaries on the Law of Bailments § 2, p. 2 (1832)). The

person receiving the item (the bailee) has a legal duty to

protect and use the item “according to the terms of the

parties’ contract if they have one, and according to the ‘implication[s] from their conduct’ if they don’t.” Id. at 399

(quoting James L. Buchwalter, et al., Bailment Contract

as Governing Rights, Duties, and Liabilities of Parties, 8

C.J.S. Bailments § 36, pp. 468-69 (2017)). Bailees are essentially custodians, who are responsible for the safety of

items entrusted with them. If bailees fail to fulfill their

legal duties, they are liable for conversion. Id. And more

importantly for this case, it is clear that the owner of the

property (the bailor) “retains a vital and protected legal

interest” in that property during the bailment, including

the privacy interests attached to the property. Id. at 400.

Bailment is not foreign to this Court’s Fourth Amendment jurisprudence. For example, in Ex Parte Jackson,

96 U.S. 727 (1878), this Court held that sealed letters

placed in the mail are “fully guarded from examination

and inspection, except as to their outward form and

weight, as if they were retained by the parties forwarding

them in their own domiciles.” Id. at 733. It did not matter

that the letters were given to a third party, this Court reasoned, because “[t]he constitutional guaranty of the right

of the people to be secure in their papers against unreasonable searches and seizures extends to their papers,

thus closed against inspection, wherever they may be.” Id.

(emphasis added). An individual’s private papers entrusted with another party for delivery receive the same

Fourth Amendment protection as though those papers

were “subjected to search in one’s own household.” Id. at

732.

7

More recently, in United States v. Jones, 565 U.S. 400

(2012), this Court recognized that bailment can play a role

in property-based Fourth Amendment analysis. Id. at 404

n.2. There, this Court discussed how the car involved in

the search was not registered in Jones’ name, but “he had

at least the property rights of a bailee,” and thus had a

property and privacy interest in the car being tracked.

Id.; see also id. at 425 (Alito, J., concurring) (discussing

bailment). Additionally, in Carpenter, the dissenting

opinions discussed bailment but ultimately concluded the

argument was not preserved and the facts did not support

a bailor-bailee relationship. Carpenter, 585 U.S. at 329

(Kennedy, J., dissenting) (arguing that the third parties

holding the CSLI data “were not bailees”); id. at 383 n.6

(Alito, J., dissenting) (stating that the facts of the case do

not support that a bailment is involved); id. at 406 (Gorsuch, J., dissenting) (recognizing that the petitioner forfeited a property-based bailment argument).

2. Applying property-based bailment principles to

the Fourth Amendment is not just consistent with precedent. It is also well supported by the text and aligns with

the Amendment’s original meaning.

a. The Fourth Amendment states that individuals are

protected against “unreasonable searches and seizures”

of “their persons, houses, papers, and effects” by the government. That wording reflects the Amendment’s “close

connection to property,” Jones, 565 U.S. at 405, and indicates that, at a minimum, the Amendment protects those

“particular places and things,” Carpenter, 585 U.S. at 392

(Gorsuch, J., dissenting).

Location data stored with online service providers,

like the Location History data at issue here, falls under

the text’s purview. Because the collected and stored location data is essentially a travel journal or travel log, it is

8

the “modern-day equivalent[] of an individual’s own ‘papers’ or ‘effects.’” Carpenter, 585 U.S. at 332 (Kennedy,

J., dissenting); see also id. at 405 (Gorsuch, J., dissenting).

This is true “even when those papers or effects are held

by a third party,” id. at 332 (Kennedy, J., dissenting), because, under bailment principles, those papers and effects

remain one’s property.

Also instructive is the Amendment’s use of the word

“their” to qualify whose property is protected. Carpenter,

585 U.S. at 352-53 (Thomas, J., dissenting); id. at 362

(Alito, J., dissenting); id. at 391 (Gorsuch, J., dissenting).

Asking “if a house, paper, or effect [is] yours under law,”

is a simple question to answer—or at least easier than trying to gauge ever-changing societal expectations in the

digital age. Id. at 397-98 (Gorsuch, J., dissenting). And in

a bailment, it is clear that individuals who bail their property to online service providers do not lose their property

interests in that property—it is still “theirs.” Although

bailors temporarily entrust their property with bailees,

bailees do not take ownership over the property. Id. at

399.

b. This Court has emphasized the importance of preserving the Fourth Amendment’s “original meaning” and

furthering its “basic purpose[s]” when analyzing whether

a “search” has occurred. Kyllo v. United States, 533 U.S.

27, 40 (2001); Carpenter, 585 U.S. at 303, 305. The Amendment must be “construed in light of what was deemed an

unreasonable search and seizure when it was adopted.”

Kyllo, 533 U.S. at 40 (citation omitted). And it is this

Court’s role to “assure[] preservation of that degree of

privacy,” especially “as technology enhance[s] the Government’s capacity to encroach upon areas normally

guarded from inquisitive eyes.” Carpenter, 585 U.S. at

305 (citing Kyllo, 533 U.S. at 34).

9

This Court has been clear that the “basic purpose” of

the Fourth Amendment “is to safeguard the privacy and

security of individuals against arbitrary invasions by government officials.” Id. at 303 (citation omitted). The

Amendment “was the founding generation’s response to

the reviled ‘general warrants’ and ‘writs of assistance’ of

the colonial era” that allowed government officials “to

rummage through homes in an unrestrained search for

evidence of criminal activity.” Riley v. California, 573

U.S. 373, 403 (2014); see also Carpenter, 585 U.S. at 303

(citation omitted). Indeed, “[o]pposition to such searches”

was “one of the driving forces behind the Revolution itself.” Riley, 573 U.S. at 403. Accordingly, the Amendment aims “to secure ‘the privacies of life’ against ‘arbitrary power,’” and “to place obstacles in the way of a too

permeating police surveillance.” Carpenter, 585 U.S. at

305 (citations omitted).

In its commitment to promoting these goals, this

Court for decades has protected individuals from the government’s use of “sense-enhancing technology” to obtain

information “otherwise unknowable.” Kyllo, 533 U.S. at

34; Carpenter, 585 U.S. at 312. Otherwise, it would leave

individuals and their privacy “at the mercy of advancing

technology.” Kyllo, 533 U.S. at 35; Carpenter, 585 U.S. at

305 (citation omitted). It is also why this Court has

“take[n] account of more sophisticated systems that are

already in use or in development” when adopting a new

rule. Kyllo, 533 U.S. at 36; Carpenter, 585 U.S. at 313.

Only then can this Court “assure[] preservation of that degree of privacy against government that existed when the

Fourth Amendment was adopted.” Kyllo, 533 U.S. at 34.

Applying property-based bailment principles to the

Fourth Amendment best fulfills these ideals.

10

B. Bailment Principles Confirm that the Fourth Amendment Protects Individuals’ Property Rights in their

Location Data.

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. Collected location data is

the modern-day equivalent to a travel log, such that it is

an individual’s property. Temporarily entrusting property digitally with an online service provider does not

strip individuals of their property or privacy interests in

that property. Carpenter, 585 U.S. at 399 (Gorsuch, J.,

dissenting). The policies, practices, and terms of service

of companies such as Google, Lyft, and Airbnb often confirm that users—not the companies—retain ultimate authority over the creation, modification, and removal of

user location data. That degree of user control sets this

type of data apart from the business records at issue in

this Court’s prior Fourth Amendment cases where individuals had no comparable ownership or property interest. Moreover, the far greater precision of this location

data amplifies the magnitude of the property and privacy

interests at stake here, further warranting robust Fourth

Amendment protection.

1. Online service providers, like NetChoice members

Google or Amazon, offer a variety of online services, including location history services and AI-driven interactions (e.g., Google Assistant or Alexa). These services allow users to create, edit, and save records of their location

over time with an online service provider, much like a person writing and keeping entries in a travel log. For example, Airbnb provides location history services to users by

storing, displaying, and sharing their past reservations by

11

city, country, and date. Lyft similarly offers comprehensive location and ride history services by providing users

with detailed records of past trips, including mapping of

pickup locations and drop-off locations. Relevant here,

Google offers a Location History service that allows users

to create and save records of their locations. In each scenario, users entrust their private data with online service

providers and expect those providers to protect the data.

Users also often have property rights to their location

data. For instance, as Google explains, Location History

data is “created, edited, and stored by and for the benefit

of Google users who opt into the service and choose to

communicate their location information to Google for

storage and processing.” J.A.12. In fact, Google describes its users’ Location History data as a “history or

journal that Google users can choose to create, edit, and

store to record their movements and travels.” J.A.16 (emphasis added). Google does not, for its own purposes,

“save information about where a particular mobile device

has been to a user’s account—even when the device-location feature is turned on and applications on the device are

using location data.” J.A.18.

Rather, users must take “additional specific steps” before Google begins to save their Location History data.

Id. If users take those steps, their Location History data

“is communicated to Google for processing and storage on

Google’s cloud-based servers.” Id. But in Google’s own

words, “it is the user who controls” the Location History

data. J.A.19. “The user can review, edit, or delete” their

location data “from Google’s servers at will.” Id. (emphasis added). Google only stores a user’s Location History

data “in accordance with the user’s decisions (e.g., to opt

in or out, or to save, edit, or delete the information).”

J.A.20.

12

Google also makes clear that while “the contents of [a

user’s] journal are reflected on a map in one’s Google account rather than in a written document, the locations and

travels recorded therein are fundamentally the contents

of the journal, capable of being reviewed, edited, and deleted by the user.” J.A.29. Further, “Google’s privacy

policy consistently refers to user data (including Location

History) as ‘your information,’ which can be managed, exported, and even deleted from Google’s servers at ‘your’

request.” Pet. 31-32 (citing 4th Cir. J.A. 39); see Pet. Br.

21 (collecting other examples). In the end, it is the users—

not Google—who control, edit, and delete their data, and

even Google itself views Location History data as the

user’s property. 1

2. Users’ ability to control and delete their location

data distinguishes that data from the business records at

issue in many of the prior Fourth Amendment decisions

relied on by the government. See United States v. Miller,

To be clear, user agreements do not create free-floating property or

privacy interests, but to the extent they do identify such interests in

particular data, that should be sufficient for Fourth Amendment purposes under the bailment principles discussed here. Further, user

agreements are just one example of how individuals may obtain property and privacy interests in their data. As another example, Congress can (and does) grant individuals property and privacy interests

in their data via statute. See, e.g., Other Digital Content (Copyright.gov), https://www.copyright.gov/registration/other-digital-content; Health Insurance Portability and Accountability Act of 1996

(HIPAA), Pub. L. No. 104-191, § 264, 110 Stat 1936, 2033. What matters is that the individual has a property interest in the data, regardless of the source. See Laura K. Donohue, Functional Equivalence

and Residual Rights Post-Carpenter: Framing a Test Consistent

with Precedent and Original Meaning, 2018 Sup. Ct. Rev. 347, 38991 (2018) (identifying sources that provide individuals with “ownership interest in digital documents or records”); Pet. Br. 17-19 (collecting examples).

1

13

425 U.S. 435, 440 (1976); Smith v. Maryland, 442 U.S. 735,

742-43 (1979); Carpenter, 585 U.S. at 300-01. Unlike users

of Google’s Location History service, none of the individuals in the government’s cited cases personally owned or

had property interests in the personal information at issue in those cases.

Miller. The government investigated Miller for tax

evasion by subpoenaing his bank for records of his canceled checks, deposit slips, and monthly statements. Miller, 425 U.S. at 437-38. The Court noted that Miller could

not assert “ownership nor possession” of the documents

because they were “business records of the banks.” Id. at

440.

Smith. This case concerned a pen register, a device

that records the outgoing phone numbers a customer dials

on a landline. Smith, 442 U.S. at 736 n.1, 737-38. The

Court held that the records from the pen register constituted the business records of the telephone company, in

which the customer had no property or privacy interest.

See id. at 742-45.

Carpenter. There, the business records at issue were

cell service location information (“CSLI”), which were

just time-stamped records automatically generated by

and for the wireless carrier whenever a cell phone connected to a cell site. Carpenter, 585 U.S. at 300-01. Carpenter, the individual asserting that these records were

protected under the Fourth Amendment, “did not create

the records, he d[id] not maintain them, he [could not] control them, and he [could not] destroy them.” Id. at 342

(Thomas, J., dissenting).

Another important distinction between the type of location data at issue here and the CSLI in Carpenter is that

the former is much more precise and unique to a specific

14

individual than the latter. The location information at issue here would allow the government to know where a

person is within meters, including travel between or

within buildings. Pet.App.271a-272a. As an example, with

the click of a button the government could retroactively

know how you spent two hours at home on August 14,

2025: one hour inside the house, thirty minutes outside in

your fenced-in backyard, and then thirty minutes in your

detached garage. And it could obtain that information,

with no judicial oversight, even though the home is a place

where “all details are intimate details” and where you are

supposed to be “safe from prying government eyes.”

Kyllo, 533 U.S. at 37.

A property-based bailment approach would prevent

this obvious invasion of privacy. It would recognize that

“[c]onsenting to give a third party access to private papers that remain [one’s] property is not the same thing as

consenting to a search of those papers by the government.” Carpenter, 585 U.S. at 390 (Gorsuch, J., dissenting). And it would be consistent with the societal expectation that “law enforcement agents and others would not—

and, indeed, in the main, simply could not—secretly monitor and catalogue every single movement” individuals

make with their cell phones. United States v. Jones, 565

U.S. 400, 430 (2012) (Alito, J., concurring); see also Carpenter, 585 U.S. at 310. Few, if any, believe that law enforcement has the resources to physically track every location and everyone in or near it 24/7, let alone do it retrospectively or in one’s home. Yet that is precisely what

the government’s overbroad application of the third-party

doctrine in this case would allow. A geofence warrant, like

the one in this case, would permit law enforcement to obtain the identities of several online service providers’ users who were in a particular location at a particular time.

15

Law enforcement, however, “need not even know in advance whether they want to follow a particular individual,

or when.” Carpenter, 585 U.S. at 312. That is the type of

arbitrary government surveillance “the Framers, ‘after

consulting the lessons of history,’ drafted the Fourth

Amendment to prevent.” Id. at 320 (citation omitted).

16

CONCLUSION

Society has become highly digitized. Cell phones, in

particular, are no longer merely a “technological convenience.” Riley v. California, 573 U.S. 373, 403 (2014). Personal information that was once created and stored on

tangible objects is now created and stored with NetChoice

members and the other online service providers who facilitate user participation in the digital age. But that digitization does not “make the information any less worthy of

the protection for which the Founders fought.” Id. This

Court’s Fourth Amendment jurisprudence should

acknowledge that reality, and a property-based bailment

approach is the most principled way to do so here.

Respectfully submitted,

PAUL TASKE

NETCHOICE

1401 K Street, N.W.

Suite 502

Washington, DC 20025

(202) 845-8817

ROBERT A. VAN KIRK

AMY MASON SAHARIA

CHARLES L. MCCLOUD

Counsel of Record

ATTICUS W. DEPROSPO

BRETT V. RIES

WILLIAMS & CONNOLLY LLP

680 Maine Avenue, S.W.

Washington, DC 20024

(202) 434-5000

lmccloud@wc.com

Counsel for Amicus Curiae

NetChoice

MARCH 2, 2026

APPENDIX A

NetChoice Association Members

•

Airbnb, Inc.

•

Amazon.com, Inc.

•

Automattic Inc.

•

Discord Inc.

•

Dreamwidth Studios

•

Duolingo, Inc.

•

EarnIn

•

eBay Inc.

•

Etsy, Inc.

•

Google LLC

•

Hims & Hers

Health, Inc.

•

JPMorganChase &

Co.

•

Lyft, Inc.

•

Meta Platforms,

Inc.

•

Netflix, Inc.

(1a)

•

Nextdoor Holdings, Inc.

•

OfferUp, Inc.

•

OpenAI

•

PayPal Holdings,

Inc.

•

Pindrop Security

•

Pinterest, Inc.

•

Reddit

•

StubHub, Inc.

•

Snap Inc.

•

Swimply

•

TikTok

•

Turo Inc.

•

Travel Tech

•

Waymo LLC

•

Wing

•

X Corp.

•

YouTube