Will the Supreme Court Recognize that Fourth Amendment Privacy Is a Precondition for First Amendment Free Speech and a Free Press?

Chatrie v. United States

The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
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Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

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