'We're Talking About Location History': Samuel Alito Grills Attorney On Location Data Privacy

Hinzugefügt: 2026-05-06

[00:00:01]Justice Kagan asked you whether this would apply to all uh searches, all all digital searches. Um, let me go back to the pre-digital era. U, it wouldn't, it's not at all uncommon.

[00:00:17]It was not all uncommon for uh a grand jury to issue a subpoena requiring a company to turn over a category of particularly described documents. But that for the company to find those documents required to search through a vast store of uh hard copy documents. What's the difference between this situation and that situation?

[00:00:50]>> So, I don't think a grand jury subpoena or any kind of subpoena would have been constitutionally permissible in this case. Um, >> well, I know you say that, but what is the what is our test for determining when a grand jury subpoena violates the fourth amendment?

[00:01:02]>> So, I think there's two circumstances when it does. One is when the holder of the documents are really a bailey of someone else's documents. So one example would be a grand jury subpoena directed at the postal service or FedEx asking it to open every single package or piece of mail to find a piece of data or you know >> when it's the company's own documents >> right so when it's the so of course as we've said we don't think that's this case but when it's the company's own documents I just go back to the test in carpenter which is there is a narrow category of cases in which a a person will have a reasonable expectation of privacy in business records held by a company and in that category of cases the subpoena is unconstitutional >> I'm sorry go ahead No one please.

[00:01:40]>> Well, in Carpenter, um, what seemed to be a very important feature, I think maybe a dispositive feature, was that the information that was sought was information that the user of the cell phone had no choice but to disclose because the the cell phone tower location is an indispensable feature of actually using your phone. That is not the situation here.

[00:02:11]>> I take the point that it's possible to function in society without having location history enabled. Although, you know, it's it's actually quite hard to function without having anything in the cloud. I'd say virtually everyone in this room has at least something in the >> Well, but that's we're not talking about everything in the cloud. We're talking about location history, >> right? It's actually Android on an Android phone where you have to take a number of steps in order to disclose it.

[00:02:34]>> You have to choose to disclose it.

[00:02:37]I take the point that you have to click yes, I'm in in order to enable uh location history on your Android phone or any other type of phone. But first of all, I just if you agree with us that this is a personal record and not a business record, that argument just doesn't matter because you make the choice to enable email or put documents or photographs into the cloud. You're choosing to send that photograph. But that choice shouldn't undermine the Fourth Amendment protection just like your choice to put something in the mail.

[00:03:00]>> Well, you think this is not a commercial record? Why? Why do you think Google compiles this? It keeps this information. It does it so it can sell advertisements.

[00:03:09]>> No, Google itself takes the position that these are not business records. I understand it's just a third party's view, but you know, it's unusual for a company to refuse to say that something's its own records. You know, unlike with CSLI, you have total, as your honor said, you can turn it on, you can turn it off, you can delete all of it anytime you want. You can delete part of it. It's really unlike something like CSLI in which you have the business keeping the records for its own purposes.