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

Supreme Court briefMar 9, 2026

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No. 25-112

In the Supreme Court of the United States

______________

OKELLO T. CHATRIE,

Petitioner

UNITED STATES OF AMERICA,

Respondent

______________

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF

THE AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF NEITHER PARTY

JAY ALAN SEKULOW

Counsel of Record

JORDAN A. SEKULOW

STUART J. ROTH

ANDREW J. EKONOMOU

GEOFFREY R. SURTEES

NATHAN J. MOELKER

LIAM R. HARRELL

AMERICAN CENTER

FOR LAW & JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................. iii

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

SUMMARY OF ARGUMENT ............................. 2

ARGUMENT ......................................................... 4

I. THE FOURTH AMENDMENT PROTECTS

PROPERTY RIGHTS, NOT MERELY

PRIVACY EXPECTATIONS........................... 4

A. The

“Expectation

Privacy”

Framework Has Untethered Fourth

Amendment Doctrine from Its

Constitutional Moorings ............................ 5

B. Location History is Property of Users ...... 10

C. A Property-Based Analysis Resolves

This Case Without Recourse to

Amorphous Balancing .............................. 12

D. Google’s “Clickwrap” Agreements

Cannot Establish the Voluntary

Disclosure Required to Invoke the

Third-Party Doctrine. .............................. 13

II. GEOFENCE WARRANTS PRESENT

SERIOUS PARTICULARITY DANGERS

THAT DEMAND A CLEAR

CONSTITUTIONAL FRAMEWORK .......... 20

A. General Warrants Were the Chief

Evil the Fourth Amendment Was

Designed to Prevent ................................. 20

B. Geofence Warrants Pose Serious

Dangers of Becoming General

Warrants in Digital Form. ....................... 22

CONCLUSION .................................................... 25

iii

TABLE OF AUTHORITIES

Cases .............................................................Page(s)

Airbnb, Inc. v. Doe,

336 So. 3d 698 (Fla. 2022) .................................... 16

Bazemore v. Jefferson Cap. Sys., LLC,

827 F.3d 1325 (11th Cir. 2016) ............................ 17

Berkson v. Gogo LLC, 97 F. Supp. 3d 359

(E.D.N.Y. 2015) ..................................................... 17

Berman v. Freedom Fin. Network, LLC,

30 F.4th 849 (9th Cir. 2022) ................................. 17

Carpenter v. United States,

585 U.S. 296 (2018) ......................... 4-11, 13, 15, 22

Coolidge v. New Hampshire,

403 U.S. 443 (1971) ........................................ 22, 23

Cullinane v. Uber Techs., Inc.,

893 F.3d 53 (1st Cir. 2018) ................................... 17

Ex parte Jackson,

96 U.S. 727 (1878) ........................................ 3, 9, 10

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC, 565 U.S. 171 (2012) ........................ 1

In re Zappos.com, Inc.,

893 F. Supp. 2d 1058 (D. Nev. 2012) ................... 17

Katz v. United States,

389 U.S. 347 (1967) .............................2, 4, 6, 13, 18

Kyllo v. United States,

533 U.S. 27 (2001) .................................................. 4

Lamb’s Chapel v. Center Moriches Sch. Dist., 508

U.S. 384 (1993) ....................................................... 1

Marron v. United States,

275 U.S. 192 (1927) .............................................. 22

Marshall v. Georgetown Mem’l Hosp.,

112 F.4th 211 (4th Cir. 2024) ............................... 17

McConnell v. FEC,

540 U.S. 93 (2003) .................................................. 1

Minnesota v. Carter,

525 U.S. 83 (1998) .................................................. 6

Nieves v. Bartlett,

587 U.S. 391 (2019) .............................................. 21

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 1

Riley v. California,

573 U.S. 373 (2014) .......................................... 2, 21

Smith v. Maryland,

442 U.S. 735 (1979) .........................7, 13, 15, 18, 19

Soldal v. Cook County,

506 U.S. 56 (1992) .................................................. 9

Specht v. Netscape Communs. Corp.,

306 F.3d 17 (2d Cir. 2002) .................................... 17

Stanford v. Texas,

379 U.S. 476 (1965) .............................................. 20

State of Washington v. Kealey,

907 P.2d 319 (Wash. Ct. App. 1995) .................... 16

Trump v. Anderson,

601 U.S. 100 (2024) ................................................ 1

United States v. Graham,

824 F.3d 421 (4th Cir. 2016) ................................ 16

United States v. Jones,

565 U.S. 400 (2012) ............................................ 8, 9

United States v. Miller,

425 U.S. 435 (1976) .................................... 7, 15, 19

United States v. Smith,

110 F.4th 817 (5th Cir. 2024) ...................... 2, 22-24

Constitutional Provisions

U.S. CONST. amend. IV ............................2, 4, 8, 21, 23

Other Authorities

10 Works of John Adams (C. Adams ed. 1856) ....... 21

8 C.J.S. Bailments § 28 (1988) ................................. 11

Harvey Silverglate, Three Felonies a Day: How the

Feds Target the Innocent (2011) ........................... 21

James C. Hoye, Click—Do We Have a Deal?, 6

SUFFOLK J. TRIAL & APP. ADVOC. 163 (2001) ....... 14

Nancy S. Kim, Wrap Contracts: Foundations and

Ramifications (2013) ............................................ 14

Orin S. Kerr, The Case for the Third-Party Doctrine,

107 MICH. L. REV. 561 (2009) ........................... 8, 16

William Baude & James Y. Stern, The Positive Law

Model of the Fourth Amendment, 129 HARV. L.

REV. 1821 (2016) ..................................................... 8

INTEREST OF AMICUS 1

The American Center for Law and Justice

(“ACLJ”) is an organization dedicated to the defense

of constitutional liberties secured by law. ACLJ

attorneys have appeared often before this Court as

counsel for parties, e.g., Trump v. Anderson, 601 U.S.

100 (2024); McConnell v. FEC, 540 U.S. 93 (2003);

Pleasant Grove City v. Summum, 555 U.S. 460 (2009);

Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S.

384 (1993); or for amicus, e.g., Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565

U.S. 171 (2012). The ACLJ has a substantial interest

in this case because it presents foundational

questions about the scope of constitutional

protections in the digital age.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

SUMMARY OF ARGUMENT

Just over a decade ago, this Court noted that “[o]ne

of the most notable distinguishing features of modern

cell phones is their immense storage capacity.” Riley

v. California, 573 U.S. 373, 393 (2014). In the years

since, more and more of the “digital record of nearly

every aspect of [Americans’] lives,” id., at 395 is kept,

not on the phone itself, but on remote servers, such as

Google’s

Location

Data

History

repository,

“Sensorvault.” United States v. Smith, 110 F.4th 817,

823 (5th Cir. 2024). The collection of so much location

data opened up a novel police investigatory approach:

rather than identify a suspect and search his

information, search the location to identify those

present. Such a search of Sensorvault for location

data is the first step of a three-step process

culminating in the identification of a particular

account’s owner.

This case involves that first step, asking first

whether a location data search is a search, and

second, whether a warrant compelling Google to

complete that search is sufficient under the Fourth

Amendment.

First, a search certainly occurred. The Fourth

Amendment’s text protects the people’s right “to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S.

CONST. amend. IV. That language provides

categorical protection for what belongs to a person.

Yet for decades, Fourth Amendment doctrine has

instead been governed by the privacy expectations

rationale attributed (falsely, see infra pp. 6-7) to Katz

v. United States, 389 U.S. 347 (1967), as well as its

progeny

exempting

third-party

searches—a

framework untethered from constitutional text and

history. The solution lies in the Amendment’s text.

The traditional approach asked whether a house,

paper, or effect was yours under law. If so, Fourth

Amendment protection followed. In Ex parte Jackson,

this Court held that sealed letters in the mail were

protected “wherever they may be”—even though

entrusted to a third party. 96 U.S. 727, 733 (1878). The

same principle applies to digital records in

Sensorvault. Google Location History is the user’s

property as explained further below. When the

Government compelled Google to search this data, it

searched the Petitioner’s “papers” and “effects.” Even

applying the third-party exemption doctrine fails,

since users did not voluntarily and knowingly disclose

their Location History within the meaning of that

doctrine.

Second, even under Katz, geofence warrants

threaten the particularity requirement of the Fourth

Amendment. These warrants are general warrants in

digital form—the very evil the Fourth Amendment

was designed to prevent. The particularity

requirement serves twin purposes: ensuring neutral

magistrates, not officers, control the scope of

searches, and protecting the innocent from

exploratory rummaging. Geofence warrants run

against both objectives. They draw a virtual fence

around a location and direct the service provider to

search 592 million individual accounts to identify

which fall within it. This sort of general warrant is

precisely what the Fourth Amendment prohibits.

Location data “provides an intimate window into a

person’s life, revealing not only his particular

movements, but through them his familial, political,

professional, religious, and sexual associations.”

Carpenter v. United States, 585 U.S. 296, 311 (2018)

(internal citation omitted). With all this accessible at

just the click of a button, meaningful limits on the

discretion of law enforcement become even more

essential. The Fourth Amendment provides those

limits. This Court should enforce them.

ARGUMENT

THE FOURTH AMENDMENT PROTECTS

PROPERTY RIGHTS, NOT MERELY

PRIVACY EXPECTATIONS.

The Fourth Amendment protects “the right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and

seizures.” U.S. CONST. amend. IV. The Constitution’s

language provides categorical protection for all things

in which persons have a legal property interest. The

“Fourth Amendment protects people, not places.”

Katz, 389 U.S. at 351. This Court in Carpenter

confirmed precisely this point, sustaining a Fourth

Amendment challenge to government seizure of

digital location records and recognizing that the

Court must “assure[] preservation of that degree of

privacy against government that existed when the

Fourth Amendment was adopted.” Carpenter, 585

U.S. at 306 (quoting Kyllo v. United States, 533 U.S.

27, 34 (2001)). Justice Gorsuch’s separate opinion

(dissenting as to the judgment but more of a

concurrence on the existence of a Fourth Amendment

violation) elaborated the textual foundation for this

conclusion more fully: “Under its plain terms, the

Amendment grants you the right to invoke its

guarantees whenever one of your protected things

(your person, your house, your papers, or your effects)

is unreasonably searched or seized. Period.” Id. at 391

(Gorsuch, J., dissenting).

A. The

“Expectation

Privacy”

Framework Has Untethered Fourth

Amendment

Doctrine

from

Its

Constitutional Moorings.

The nine separate opinions filed by fourteen

Fourth Circuit judges in this case powerfully

demonstrate the unworkability of the “reasonable

expectation of privacy” test. Some judges concluded a

search occurred, others that it did not. Even among

those who found no search, there was no agreement

about why. This cacophony reflects an inherent flaw

in the “expectation of privacy” framework. As Justice

Thomas explained in Carpenter, the reasonableexpectation-of-privacy test “has no basis in the text or

history of the Fourth Amendment.” Id. at 343

(Thomas, J., dissenting).

The Carpenter Court declined to extend the thirdparty exemption cases of Smith and Miller, infra p. 7,

to the digital age, recognizing that such an extension

would leave individuals with no Fourth Amendment

protection in “an intimate window into [their]

personal li[ves].” Carpenter, 585 U.S. at 311, 316. The

separate

opinions

further

illuminated

the

“expectation of privacy” framework’s structural

weaknesses. As Justice Gorsuch noted, “Katz has

yielded an often unpredictable—and sometimes

unbelievable—jurisprudence.” Id. at 394 (Gorsuch, J.,

dissenting). The test misconstrues virtually every

word of the Fourth Amendment. It focuses on

“privacy” when the text speaks of being “secure.” It

asks about “expectations” when the text protects

objective things: property interests in “persons,

houses, papers, and effects.” And it invites judges to

make sociological judgments about what society is

prepared to recognize as reasonable—an inquiry

untethered from law or history. It offers “no plausible

foundation in the text of the Fourth Amendment” and

provides no meaningful guidance to law enforcement,

magistrates, or lower courts. Id. at 346 (Thomas, J.,

dissenting) (quoting Minnesota v. Carter, 525 U.S. 83,

97 (1998) (opinion of Scalia, J.)).

Curiously, Katz itself never said that the proper

Fourth Amendment test looks to one’s “reasonable

expectation of privacy.” To the contrary, the Katz

Court explicitly declared that Fourth Amendment

“protections go further [than intrusion on privacy],

and often have nothing to do with privacy at all.” 389

U.S. at 350 (emphasis added). The turn of phrase Katz

is best known for actually comes, not from the

majority (which, if anything, said the opposite), but

from Justice Harlan’s separate concurrence, 389 U.S.

at 360. Katz itself properly held that the Fourth

Amendment protects a person’s private phone calls,

regardless of the fact that the calls were made in a

public place (a phone booth), 389 U.S. at 348, and

there was no “physical penetration” of Katz’s location,

id. at 352, and, of course, Katz did not own the phone,

phone lines, or receiver at the other end. His

messages traversed the property of third parties. The

Katz Court nevertheless found a Fourth Amendment

violation. Thus, it is the (misbegotten) ghost of Katz,

and not Katz itself, which has spread abroad the

“expectation of privacy” test.

This case illustrates one of the most glaring

problems with the “ghost of Katz” test. This Court has

held that individuals have no Fourth Amendment

interests in business records that are possessed,

owned, and controlled by a third party. United States

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

U.S. 735 (1979) (superseded by statute). These

decisions were fundamentally premised on the

Court’s use of a “reasonable expectation of privacy”

test without any application of the actual history and

text of the Fourth Amendment. Katz, of course, itself

found a Fourth Amendment violation despite the fact

that the phone booth, phone lines, and receiver at the

other end were all owned and controlled by third

parties. The Carpenter majority similarly declined to

extend the third-party exemption doctrine to digital

location data precisely because doing so would give

the government virtually unrestricted access to “a

detailed chronicle of a person’s physical presence

compiled every day, every moment, over several

years.” Carpenter, 585 U.S. at 315. “Such a chronicle

implicates privacy concerns far beyond those

considered in Smith and Miller.” Id.

As Justice Gorsuch asked,

What’s left of the Fourth Amendment? Today we

use the Internet to do most everything. . . Countless

Internet companies maintain records about us and,

increasingly, for us. Even our most private

documents—those that, in other eras, we would

have locked safely in a desk drawer or destroyed—

now reside on third party servers. Smith and Miller

teach that the police can review all of this

material[.]

Carpenter, 585 U.S. at 387 (Gorsuch, J., dissenting).

Justice Gorsuch has thoroughly unpacked the

deep-rooted problems with the third-party doctrine:

“countless scholars, too, have come to conclude that

the ‘third-party doctrine is not only wrong, but

horribly wrong.’” Carpenter, 585 U.S. at 388-389

(quoting Orin S. Kerr, The Case for the Third-Party

Doctrine, 107 MICH. L. REV. 561, 563, n. 5, 564 (2009)).

It is “quite dubious.” Id. at 389 (quoting William

Baude & James Y. Stern, The Positive Law Model of

the Fourth Amendment, 129 HARV. L. REV. 1821, 1872

(2016)). Justice Gorsuch highlights how broadly the

third-party doctrine sweeps and the practical

implications of the doctrine: “In the end, what do

Smith and Miller add up to? A doubtful application of

Katz that lets the government search almost

whatever it wants whenever it wants.” Id. at 391.

The solution to this overbreadth lies in returning

to a more plain and direct understanding of the

Fourth Amendment. The text of the Fourth

Amendment protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects,”

U.S. CONST. amend. IV (emphasis added), not abstract

protections of “expectations.” And when intrusion

becomes normalized or expected, and surveillance

becomes common, then that should not justify further

intrusions on protected constitutional rights. The

Carpenter majority confirmed that Katz did not

replace the common-law property framework but

rather added to it. Carpenter, 585 U.S. at 304 (citing

United States v. Jones, 565 U.S. 400, 405, 406-07

(2012)). “[T]he traditional approach asked if a house,

paper, or effect was yours under law. No more was

needed to trigger the Fourth Amendment.” Carpenter,

585 U.S. at 397-98 (Gorsuch, J., dissenting);

Soldal v. Cook County, 506 U.S. 56, 64 (1992)

(Katz did not “snuf[f] out the previously recognized

protection for property under the Fourth

Amendment”).

When this Court applied the traditional

understanding of the Fourth Amendment before Katz,

the results in “third party” cases were far different.

“Miller and Smith may not apply when the

Government obtains the modern-day equivalents of

an individual’s own ‘papers’ or ‘effects,’ even when

those papers or effects are held by a third party.”

Carpenter, 585 U.S. at 332. In Ex parte Jackson, 96

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

placed in the mail were protected 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. at 732

(emphasis added). It did not matter that letters were

entrusted to the government via a bailment. The

sender enjoyed the same Fourth Amendment

protection as he does “when papers are subjected to

search in one’s own household.” Id. This Court’s

conclusion was clear and emphatic:

No law of Congress can place in the hands of

officials connected with the postal service any

authority to invade the secrecy of letters and such

sealed packages in the mail; and all regulations

adopted as to mail matter of this kind must be in

subordination to the great principle embodied in

the fourth amendment of the Constitution.”

Id.

As this Court held in Carpenter, digital sharing

does not automatically forfeit Fourth Amendment

rights — the fact that “information is gathered by a

third party does not make it any less deserving of

Fourth Amendment protection.” Carpenter, 585 U.S.

at 320. No one forfeits property interests or Fourth

Amendment rights simply by entrusting their

property to a third party.

B. Location History is Property of Users.

Unlike the cell-site location information at issue in

Carpenter, location history is not a business record

created and maintained by Google for its own

purposes. It is user-generated data that Google

collects and stores on behalf of users, subject to the

users’ control. The legal relationship is one of

bailment, not ownership.

Google’s privacy policy confirms this point. The

policy consistently refers to Location History as “your

information” and “your data.” Users can enable or

disable Location History at will. They can delete their

Location History at any time. They can export it. They

control it. The individualized Location History

associated with a particular user’s account is that

user’s property, held by Google as a bailee.

The Carpenter majority drew this line itself,

distinguishing Miller and Smith—which involved

records created by institutions for their own business

purposes—from location data generated incidentally

in the course of using a device. 585 U.S. at 314. Justice

Gorsuch’s dissent translated this same distinction

into common-law property terms, recognizing that

entrusted data is held by a bailee, not surrendered to

an owner. He noted that when records are “entrusted”

to a third party, the Fourth Amendment’s protection

does not necessarily lapse. 585 U.S. at 399 (Gorsuch,

J., dissenting). “Entrusting your stuff to others is a

bailment” under common law, and a “bailee normally

owes a legal duty to keep the item safe” according to

the terms of the parties’ agreement. Id. These

“ancient principles” protect individuals’ interests

even in records held by a third party. Id. at 400.

Location History fits comfortably within this

framework. When people enable Location History,

they do not surrender ownership of the data to Google.

They authorize Google to collect and store it on their

behalf, subject to their continuing control. The

relationship is analogous to storing personal papers

in a safe deposit box or personal files on a cloud

server. The bank or service provider may physically

possess the items, but they remain the customer’s

property. A warrant to search those items is a search

of the customer’s effects, not the service provider’s

business records.

This analysis finds strong support in the common

law of bailment. See id. At common law, the bailee

holds the goods on behalf of the bailor and owes the

bailor duties of care and return. Critically, the bailor

retains ownership of the bailed property. 8

C.J.S. Bailments § 28 (1988). The bailee’s possession

is derivative and limited by the terms of the bailment.

See Carpenter, 585 U.S. at 399 (Gorsuch, J.,

dissenting) (quoting 8 C.J.S., Bailments § 36, pp. 468-

469 (2017)).

That is precisely the relationship between users

and Google with respect to Location History. Users

retain ownership of their location data. Google’s

possession is derivative—it exists only because users

have authorized Google to collect and store the data.

And Google’s rights to use that data are limited by the

collection, delete stored data, and export their

information. Granting Google limited usage of the

data cannot be understood as a wholesale waiver of

one’s constitutional right against an unreasonable

search.

C. A Property-Based Analysis Resolves

This

Case

Without

Recourse

Amorphous Balancing.

Once Location History is recognized as belonging

to the user, the constitutional analysis becomes

straightforward. When the Government compels

Google to search a user’s Location History, it searches

the user’s “papers” and “effects” within the meaning

of the Fourth Amendment. A property-based

approach provides clear guidance to law enforcement,

magistrates, and courts. There is no need to engage in

multi-factor balancing or to make sociological

predictions about societal expectations. The question

is simply whether the item searched belongs to the

person claiming Fourth Amendment protection. If it

does, the search requires a warrant supported by

probable cause, subject to established exceptions.

Moreover, a property-based approach avoids the

third-party doctrine’s most troubling implications.

Under the Smith and Miller framework, sharing

information with anyone—even for limited purposes

and subject to contractual restrictions—can result in

forfeiture of Fourth Amendment protection. This

creates perverse incentives: it discourages beneficial

data-sharing and forces individuals to choose between

using modern technology and preserving their

constitutional rights.

A property-based approach eliminates this

dilemma. “When confronting new concerns wrought

by digital technology, this Court has been careful not

to uncritically extend existing precedents.” Carpenter,

585 U.S. at 318. Sharing property with a bailee does

not forfeit ownership. Storing papers in a bank vault

does not make them the bank’s papers. Uploading

files to a cloud server does not transfer ownership to

the server operator. The same should be true for

Location History: entrusting it to Google for

safekeeping does not strip people of their Fourth

Amendment protection in that data.

D. Google’s

“Clickwrap”

Agreements

Cannot

Establish

the

Voluntary

Disclosure Required to Invoke the

Third-Party Doctrine.

Moreover, the third-party doctrine forfeits Fourth

Amendment protection only where an individual

knowingly and voluntarily exposes information to a

third party, thereby assuming the risk of government

access. Smith, 442 U.S. at 743-44 (“[A] person has no

legitimate expectation of privacy in information he

voluntarily turns over to third parties.”) (emphasis

added). See also Katz, 389 U.S. at 351 (“What a person

knowingly exposes to the public . . . is not a subject

of Fourth Amendment protection”) (emphasis added).

The government’s theory depends entirely on the

premise that users who click through Google’s setup

screens have voluntarily disclosed and forfeited their

location data within the meaning of that doctrine. But

that premise fails at every level. Google’s “clickwrap” 2

agreements

neither

satisfy

the

contractual

requirements courts demand for genuine assent nor

establish the informed, purposeful exposure that Katz

and its progeny require before a constitutional

privacy interest may be deemed surrendered. Where

consent is illusory as a matter of contract law, it

cannot carry the far heavier constitutional burden the

government asks this Court to place upon it.

As articulated by this Court, the third-party

disclosure doctrine holds that individuals forfeit their

reasonable expectation of privacy in information they

voluntarily convey or knowingly expose to third

parties, thereby allowing government access without

a warrant; but this exception applies only when the

2 “Clickwrap” agreements are a form of adhesion agreements in

which “the adhering party does not have to use a pen,” but rather

clicks on some electronic icon. Nancy S. Kim, Wrap Contracts:

Foundations and Ramifications 3 (2013) (There are other “wrap”

agreements, like “browsewrap,” “scrollwrap,” etc., named from

the action required.) The unusual names stem from

“shrinkwrap” agreements, in which physically packaged

software contained agreements to which an offeree supposedly

agreed by merely tearing the cellophane packaging. James C.

Hoye, Click—Do We Have a Deal?, 6 SUFFOLK J. TRIAL & APP.

ADVOC. 163, 165 n.16 (2001).

disclosure is purposeful and informed, not compelled

by necessity or inadvertent. See Miller, 425 U.S. at

442-43 (no Fourth Amendment protection for bank

records because defendant “voluntarily conveyed”

financial information to the bank and “exposed” it to

employees in the ordinary course of business,

assuming the risk of further disclosure); Smith, 442

U.S. at 743-44 (no privacy expectation in dialed phone

numbers as petitioner “voluntarily conveyed

numerical information to the telephone company” via

automated systems, knowingly exposing it despite

subjective beliefs in confidentiality).

Recent decisions have narrowed the doctrine’s

scope, further underscoring that it does not apply

absent true voluntariness, particularly in digital

contexts where data sharing is often compelled by

modern life. Most importantly, this Court held in

Carpenter that the third-party doctrine does not apply

to digital location records. The Court rejected the

government’s third-party doctrine argument because

cell-site location information is not “truly ‘shared’ as

one normally understands the term,” 585 U.S. at 315,

and is instead generated automatically “without any

affirmative act on the part of the user” beyond simply

carrying a phone. The Court distinguished this from

the “purposeful disclosures” in Miller and Smith.

Lower courts, state courts, and scholars have

reinforced that the doctrine demands purposeful

cession of privacy, invalidating its application to

involuntary or unknowing disclosures, such as

automated metadata generation. See, e.g., State of

Washington v. Kealey, 907 P.2d 319 (Wash. Ct. App.

1995) (holding that defendant maintained a privacy

interest, albeit diminished, in forgotten, zipped

purse); United States v. Graham, 824 F.3d 421, 430

(4th Cir. 2016) (en banc) (pre-Carpenter CSLI case

focusing on how defendant “thus voluntarily conveys

the information necessary” to create CSLI); Orin S.

Kerr, The Case for the Third-Party Doctrine, 107

MICH. L. REV. 561, 575 (2009) (emphasizing

“voluntary” exposure as doctrinal core, excluding

compelled or unwitting transfers). Thus, the thirdparty doctrine applies solely when an individual

knowingly and purposefully cedes control over private

information to a third party, assuming the risk of

government access, and does not extend to incidental,

automatic, or coerced conveyances that lack such

intent.

Clickwrap agreements, a form of electronic

adhesion contract where users manifest assent by

clicking a button or checkbox (e.g., “I agree”) after

being presented with terms, can be enforceable when

they provide reasonable notice of the terms and

require affirmative user consent, as courts evaluate

them based on traditional principles of offer,

acceptance, and mutual assent. See, e.g., Airbnb, Inc.

v. Doe, 336 So. 3d 698 (Fla. 2022). However, when

“consumers are urged to download free software at

the immediate click of a button,” courts give more

scrutiny to whether an offeree has actually

manifested any assent to the contract, usually by

focusing on the user experience leading up to the

“click” at issue. Specht v. Netscape Communs. Corp.,

306 F.3d 17, 31 (2d Cir. 2002) (Sotomayor, J.). Courts

have repeatedly refused to enforce clickwrap

agreements where the terms are not conspicuously

presented, lack meaningful opportunity for review, or

fail to secure genuine consent. Cullinane v. Uber

Techs., Inc., 893 F.3d 53 (1st Cir. 2018) (holding that

offerees were not reasonably notified of an arbitration

agreement in clickwrap); Marshall v. Georgetown

Mem’l Hosp., 112 F.4th 211 (4th Cir. 2024); Berman

v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir.

2022); Bazemore v. Jefferson Cap. Sys., LLC, 827 F.3d

1325 (11th Cir. 2016). Buried hyperlinks, small font,

or confusing interfaces all weigh against a clickwrap’s

enforceability. See, e.g., Berkson v. Gogo LLC, 97 F.

Supp. 3d 359, 397-401 (E.D.N.Y. 2015) (refusing

enforcement when hyperlinks to terms were

inconspicuous compared to “sign-in” button); In re

Zappos.com, Inc., 893 F. Supp. 2d 1058, 1064 (D. Nev.

2012)

(terms

unenforceable

when

placed

inconspicuously at bottom of page). As adhesion

contracts (at best), courts similarly are quick to strike

unconscionable portions, particularly when presented

during mandatory device setup, or when an app

presents persistent prompts, creating illusory choice

rather than informed consent.

Here, Google’s Location History clickwrap fails on

precisely the grounds courts have found dispositive.

Like the buried hyperlinks condemned in Berkson and

the inconspicuous footer terms struck in In re

Zappos.com, Google’s privacy disclosures are

embedded within layered, dense terms of service that

no reasonable user meaningfully reviews before

clicking through. The “affirmative” act of enabling

Location History—whether during initial device

setup or through persistent app prompts—mirrors

the coercive dynamic courts have identified as

producing illusory rather than genuine consent.

Where the user experience fails to secure reasonable

notice and genuine assent, the clickwrap cannot be

said to reflect voluntary disclosure, a prerequisite

assumed in Smith v. Maryland.

Even a user who reads and understands that

Google collects location data for purposes of

navigation, personalization, or targeted advertising

has not thereby consented to the creation and

indefinite retention of a granular, retrospective

record precise enough to place them at a specific

location at a specific moment in time—the sort of

record at issue here and necessary for a geofence

warrant. There is a profound difference of degree

between knowing that a tech company “uses your

location” and understanding that it is silently

building a permanent, timestamped archive of your

movements that law enforcement may later subpoena

to reconstruct your whereabouts on any given day. No

reasonable reading of Google’s clickwrap disclosures

(assuming they are read at all) would put an ordinary

user on notice of that latter reality.

Under Katz, only what a person “knowingly

exposes” falls outside constitutional protection. A

user who clicks through a setup screen to enable maps

and weather notifications has not knowingly exposed

a detailed location history suitable for forensic use by

the government. The fiction of consent manufactured

by an adhesion contract presented during mandatory

device setup cannot bear the constitutional weight the

government asks this Court to place upon it.

And if the clickwrap cannot establish voluntary

disclosure as a matter of contract law, it certainly

cannot establish the knowing, voluntary exposure

required to forfeit Fourth Amendment rights under

Smith and Miller. The government cannot

simultaneously argue that Google’s terms are

enforceable enough to eliminate a privacy interest

while the very courts tasked with enforcing those

terms would find them wanting.

Accordingly, even if this Court were to apply the

third-party doctrine, it could not find that individuals

voluntarily relinquished their Fourth Amendment

interest in their Location History data. The clickwrap

mechanism through which Google purports to obtain

user consent fails to satisfy the knowing, voluntary

exposure required under Katz and Smith to forfeit

constitutional protection. A user who clicks through

device setup screens may understand, at most, that

Google will use their location for everyday app

functions, not that Google is constructing a

permanent,

forensic-grade