In March 2022, I wrote about the district court’s ruling in United States v. Chatrie, the first federal district court ruling on geofence warrants and the Fourth Amendment. Today the Fourth Circuit held oral argument in the case, which you can listen to here around 1:10. It was an unusual argument, with the judges expressing their views and arguing among themselves. Overall, it seemed to go well for the government, and I think they may prevail 2-1. Judge Richardson appeared to be on the government’s side, suggesting that there was no Fourth Amendment protection in the specific records known as “Google Location History” because users need to opt in for Google to collect them. Judge Wilkinson also seemed to be on the government’s side, expressing concern about limiting law enforcement’s use of geofence warrants. On the other hand, Judge Wynn was on the defense side, finding this surveillance extremely disturbing. Looking ahead, I wonder if the judges will agree on a rationale to make a majority opinion. I hope the court doesn’t decide the case on the good-faith exception without deciding at least some of the merits issues, as it would leave the law uncertain. It seems that the current warrant regime set by Google might not be the right framework, and that geofencing should instead take place under the statutory regime of 18 U.S.C 2703(d). It seems a working system should feature courts ruling about the constitutional issues potentially raised by geofence warrants and then Congress legislating in response to those constitutional rulings— with Google’s input, certainly, but not with Google calling the shots. On the other hand, if we’re just muddling through under the good faith exception, it may be that the strange world of Google Policy continues on for a long time.