All rise for the Chatrie.

Dave Bittner: Hello, everyone, and welcome to "Caveat," N2K CyberWire's privacy surveillance, law, and policy podcast. I'm Dave Bittner and joining me is my cohost Ben Yelin from the University of Maryland Center for Cyber Health and Hazard Strategies. Hey there, Ben.

Ben Yelin: Hello, Dave.

Dave Bittner: And our N2K colleague and author of the weekly "Caveat" newsletter Ethan Cook. Hey, Ethan.

Ethan Cook: Hey, guys.

Dave Bittner: On today's show we are unpacking Supreme Court deliberations on geofence warrant requirements. While this show covers legal topics, and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover please contact your attorney. [ Music ] All right, gentlemen. It's a busy important week when it comes to cyber policy and the Supreme Court. Ben, why don't I give you the honors to give us a little description of what exactly is going on?

Ben Yelin: So it was basically Christmas for fourth amendment nerds. This is the Chatrie v United States case that came up for oral argument yesterday as we're recording this. Highly anticipated. It's a case about geofence warrants. To give you the very briefest of backgrounds, this guy Chatrie robbed a bank. They didn't have any evidence about who had committed the robbery so they were able to obtain geofence data from Google, narrow just through investigative methods -- narrowed the search to a few people, ended up realizing that Chatrie fit the pattern. He was arrested, prosecuted. He's appealing saying that this was an unconstitutional search, that the method of going to Google and asking for all of the people who were in a particular area at a particular time violates the fourth amendment. This brings up not just one fourth amendment issue, but a whole lot of fourth amendment issues. So I'm going to try and break it down as cleanly as I can from oral arguments yesterday just because there are a lot of layers here. And if I had to guess, not to give away the ending to this, this is going to be some type of like four four three decision. I guess that doesn't add up with nine justices. It's going to be like three, three, and three where they agree on some things and disagree on others and there are nine concurrences and four different dissents just because there's so many different issues that if some justices agree with each other on one aspect of the case odds are they're going to disagree on another aspect of the case. If that makes sense.

Dave Bittner: Yeah.

Ben Yelin: So let's start with the very, very basics here. Should the Supreme Court be hearing this case at all? This is something that Justice Alito really honed in on. Basically there are a couple reasons why this case might be moot. For one Chatrie is probably going to be prosecuted and jailed no matter what happens in this case. Like his conviction's not going to get overturned because of the good faith exception. There's no evidence that law enforcement at the time that they were conducting this search did anything that was illegal. Like it was very clearly they were acting in good faith to use what they thought were constitutional means at the time. It's very likely that the conviction is going to be vacated because there's just no evidence that law enforcement wasn't using good faith. And so what Justice Alito was saying was -- and actually it got good laughter from the room. Like why are we taking this case besides the fact that four of my colleagues voted to take it up? Like there's no actual case or controversy here.

Dave Bittner: Wasn't that enough?

Ben Yelin: Exactly. I mean right. I'm sure he got a little chuckle from the other justices.

Dave Bittner: Yeah.

Ben Yelin: The other thing is that Google decided in 2023 that they were not going to retain data that they had been giving over the government when they were receiving these geofence warrants or subpoenas. So now that location data stays with the individual, stays with the devices. Google no longer has access to it. So there's a question about since Google changed its policy is this case kind of mooted because it's not going to be replicated in the future. And I think --

Dave Bittner: Google's not the only data broker in town.

Ben Yelin: Exactly, and that's what the justices were saying. Like they are the biggest fish in the pond when it comes to collecting location data because most people use Google applications whether it's Chrome or Google maps.

Dave Bittner: Yeah.

Ben Yelin: But they're certainly not the only player and we need to have some type of settled law as it relates to other data brokers. So we have to resolve those issues first. Then we get in to the fourth amendment stuff. So there's basically two inquiries here. One is whether or not this is a search. And that took up a lot of the oral arguments. So fourth amendment bans unreasonable searches and seizures. Implicit in that is that you have to have a search. If it's not a search for constitutional purposes then the government can basically do what it wants. They don't need to get a warrant supported by probable cause. And there are a couple of different theories about determining whether something is a search. The historical theory that we've talked about a million times on this podcast is about a reasonable expectation of privacy. Does a person have a subjective expectation of privacy? Is that one that society is willing to recognize as reasonable? And that kind of line of cases goes all the way through Carpenter where you have this analysis looking at what did the person expect. Did they think that they were keeping their location information private and viewing it through that lens? And I think the justices were having a very difficult time answering that question because there's just a lot of factors here. Like should you have a reasonable expectation of privacy if you see the terms of service, you affirmatively have to agree with them, you have constructive notice in the terms of service that say you consent to lawful requests for your location data? And unlike a lot of other features on your device you really have to opt in to this. Like the default is that you're not sharing your location services. So this is an affirmative decision that a person makes. So are they therefore forfeiting their reasonable expectation of privacy? I think a couple of conservative justices made arguments along those lines that this is a third party doctrine case. They voluntarily submitted their records to third parties and therefore they don't have any vested interest in those records. The other theory that they spent a lot of time on is more of a property based theory. So this is something that Justice Gorsuch introduced in his dissent in the Carpenter case, but basically the idea is even if you don't have something in your possession you retain some type of property right over that information and therefore you have fourth amendment protection of that information. So the analogy they mentioned a billion times in oral arguments is like a virtual safety deposit box or a lock box. I don't have that in my possession. Like think of a physical safety deposit box at a bank. I don't have that in my possession, but I'm the only person who can open it. I'm the only person who has the key. I control what information, which documents, go in and out of that box. So that if you take that in to the digital world I think the idea there would be this would be an unreasonable search of somebody's papers because that person has a property interest. You're going in to somebody's property and fumbling around for papers which sounds like exactly what the fourth amendment was designed to prevent.

Dave Bittner: Even if that property is on location at a bank branch.

Ben Yelin: Exactly.

Dave Bittner: Right.

Ben Yelin: And there have been -- there has been case law in the past that's indicated as such, that just because it's at the bank branch obviously the person maintains some type of property interest. You know, it has all of the features of somebody's property interest. You can dispose of it. You have a certain level of control of access controls that nobody else has. So it really fits tightly that definition of property. And so I think what the petitioner here was arguing, so what Chatrie's attorney was arguing here, is this is a search because it was a search of Chatrie's papers essentially, his stuff, just in the visual realm. It was basically a trespass theory that this was the government trespassing on Chatrie's property which I don't know that that's going to be an argument that the Supreme Court is going to buy because that could open a can of worms. I'm going to stop there first and Ethan let you weigh in because otherwise I would just keep talking. So you weigh in.

Ethan Cook: Yeah. So one. I appreciate that, Ben. I think the you nerding about law is one of my favorite things because I'm not a lawyer by trade so I get to learn something new every time. And then, two, I think your nuance of breaking down the different perspectives is incredibly helpful as someone who, A, doesn't know a ton about the justices outside of, you know, their initial kind of confirmations and some rulings, and B especially in cases like this where from what I can -- from what I can tell it is not split along party lines. It's not like, "Oh. Republicans are viewing it this way and Democrats are -- democratic justices are viewing it this way." It's really complex nuance. I think like, for example, Amy Coney Barrett was -- had questioned both sides pretty intensely from the initial reports.

Ben Yelin: Yeah. She's always interested in line drawing and there were a lot of really, really good line drawing questions here, especially when it got to the particularity of the warrant itself which we'll get to. But it's like is a 30 minute time limit sufficient for the particularity requirement? Does it have to be less than that? 15 minutes? And like how many people within that genfence zone did there have to be for it to qualify as a constitutional search? Like if there are 100 people in that geographic area, you know, that might make it less persuasive if this was a particularized search whereas if there was a crime at a store and there were only 10 people there it might be more reasonable as a search if that warrant was more particularized.

Ethan Cook: Yeah. I think, you know, I always kind of walk the fine line of I think there is a reasonable expectation that law enforcement in order to catch the bad guys who are genuinely bad actors such as this person who without question robbed the bank, that's not up for debate, should be allowed to go after and actually -- and catch these people because they're clearly malicious actors. They're not people acting in good faith. But then I think you get to the other side of that coin where it's like okay, but at what point does this catch other people up and expose -- and open the door to a world that we're not really comfortable with? And I think you hit the nail on the head right there. Hit the nail on the head. Hit the head on nail. Hit the nail on the head.

Ben Yelin: You got it right the first time.

Ethan Cook: The caffeine hasn't kicked in fully I guess. What is the scope of these searches? You know. And I think the difference is a lot of times when we talk about warrants or getting information on someone you're requesting information on the specific person and it is a very targeted narrow focus. Right? We're saying, "Okay. What has this person looked up?" Or, you know, what is this person's records or company's records? Like we're not just saying, "Okay. Can we query every single financial bank and hopefully we find some -- " You know, just randomly find some evidence that works for us. And with these geofencing, you know, we're kind of just arbitrarily drawing a line and whatever that line may be, whether it's okay it's a 10 mile radius, 5 mile radius, you know, 30 blocks or whatever, and saying, "Okay. Who was all in there at that time period?" And what is the, you know -- what are the concerning actors there? And then dive deeper from there. And I think while even though, you know, we bring up the point that Google has no longer continued these services, you know they've stopped this process, so you could use the argument "Well, it's not relevant anymore," I think if you go by that argument then it doesn't really actually solve the problem because it just takes one other company who decides that, oh, you know, maybe we're a surveillance camera company and we're going to be like, "Okay. We're buddy buddies." Or we're former defense contractors and we're just going, you know, wink wink nudge -- wink wink nudge nudge this and do the exact same thing because it's legally ambiguous. And I don't think it's necessarily important to -- for this individual person to resolve this, but for like in the next 10 years as surveillance only grows -- like AI, you know. Whether we get to these places where we can really gather and aggregate data fast, this should be something that is resolved now and not in 10 years when it becomes absolutely catastrophic if it's not touched.

Ben Yelin: So I agree with you and I think that's a great point. And I think actually most of the justices would agree with you too. Alito's argument was basically like the Supreme Court doesn't issue advisory opinions. Like there has to be an actual case or controversy here. And because the actual stakes to the individual affected, Chatrie, are nil because he's -- conviction's going to be sustained no matter what, they should not be discussing this case. What other justices and the petitioners argued is like we need to settle this one way or another. Maybe not just down the line, but also for Chatrie himself. I mean maybe we need to let the fourth circuit where this case originated, let them decide the whole good faith exception thing. We need to make a decision on the law here about what counts as a particularized warrant even if that's the only decision we make, and leave it up to the lower courts to determine how that applies to Chatrie. And I think in that case you would have a live case and controversy. Counter argument to that is it's so obvious that cops were acting in good faith, what's the point? We know how the fourth circuit's going to decide.

Dave Bittner: I have a question.

Ben Yelin: Yes.

Dave Bittner: So it seems to me that fundamental to this case, and I'm curious if this line of questioning came up with the arguments, it seems to me that fundamental to this case is whether or not location data can be used as a primary data source or a secondary data source. In other words, it's one thing if I come to Google and say, "Tell me everybody who was at this 7-11 on this day." That's why we consider it primary. Right? I don't have any other leads. A secondary source would be me going to Google and saying, "I think Ben Yelin might have been at this 7-11 on this day. Can you verify that for me?"

Ben Yelin: And I think those are completely different. I think in your second scenario that's a clear obviously you would have -- if you have probable cause then you could obtain a subpoena certainly and probably -- or a warrant certainly and probably a subpoena as well to obtain that information.

Dave Bittner: Right.

Ben Yelin: But when we're talking about a specific location what the petitioner's argument is is that's not particularized enough. That is too much like a general warrant where our English legal ancestors would say "Go in to this person's house and see what you can find." The analogy that the petitioner came up with is if you went around like there was a rumor that there was something nefarious in a safe deposit box at a bank so you went to the bank and you checked out every single safe deposit box that was in that bank during a particular period. Like that would still violate every single person's property right because you didn't have a particularized suspicion there, if that makes sense.

Dave Bittner: Yeah.

Ben Yelin: You know the other thing that we haven't even gotten in to yet, and sorry, this is just layers upon layers, is it makes a difference whether courts consider location data here content or non content. Because if it's content then really a warrant is going to apply. Right? We know that lower courts have said, for example, that the contents of your email if law enforcement wants access to those they have to get a warrant and prove probable cause. But meta data or like data about data, so records like routing data, that's considered non content and that generally falls under the third party doctrine. If you voluntarily give up that information you don't have any privacy interests in it. It's really complicated in this case. You know, on first blush I would say I think this is non content because it's location. I mean it's just it's more akin to routing than it is to like the contents of your conversations or your emails. On the other hand, and this is what the petitioner argued, this is just one of many things that we save in to the cloud. Right? And the cloud itself like if we kind of pierced the veil of the cloud and we acknowledged that something in the cloud can be accessed without any type of involvement from the judicial branch then that can have a slippery slope because there are a bunch of other different records that might be non content and then all of a sudden the government's accessing your calendar and, you know, a bunch of different things like that. Not to mention that in Carpenter they said that you do have a reasonable expectation of privacy in your self site location data. So is that relevant here? Like location data, location data. Right? I mean they're different types of cases, but so I don't think they really resolved that in oral arguments here. So I think that's a very live question on this kind of first part of -- or I should say second part of the case here about whether this is a search or not is what is the test even because we don't know if this is content or non content.

Ethan Cook: Yeah. And I think going back to the Carpenter case, and for context that was 2018, if I remember correctly, that involved the government right or law enforcement arresting someone after they had obtained their involvement in a crime through cell location services.

Ben Yelin: Ironically this guy was robbing cell phone stores which is just great.

Ethan Cook: And they ruled -- for context, they ruled that that was not -- you could not just query that, that you needed a warrant and to go through the whole process. The standard I should say investigation process. You know, I think when you look at this conversation, and the reason why I'm a fan of the Supreme Court taking it up is because all the things you just brought up, Ben, whether it's meta data on calendars, etcetera, cloud, I think obviously there is like a reasonable thing as a society we can agree upon where it's like okay we are in a digital world now. Right? We are in a place where your phone any time you send an email it connects to a server and the server knows where you're sending that email from. Right? Or whatever it may be that a certain degree of privacy is not expected anymore. But I think the argument that we should just blow the doors open to privacy and never even attempt to secure privacy or allow law enforcement to ignore any privacy requirements is where you get in to this like really slippery gray slope where I don't think that it's a problem in this individual case as Alito alludes to. Or I guess I should say outright says. But it certainly for me at least, someone who's not necessarily a lawyer, but someone who is a big privacy advocate, I look at this and say, "How does this not raise red flags across spectrums that like -- " And it's we're catching someone up in a random thing or, you know, it feels very almost like stop and frisk to a degree. Right? Where it's just like, "Well, we're suspicious that you could be doing something so we're just going to make sure that we just check in on that." And those were ruled unconstitutional for a reason.

Ben Yelin: Right. Right. Right.

Ethan Cook: You can't just arrest someone because they look like they may be, you know, a concerning actor.

Ben Yelin: Right. That is not the way our fourth amendment works. And I think that's something that the justices definitely considered in this case. Like are we going to -- if we allow this type of search, is it just going to keep getting more over broad where maybe for now this was limited in time, it was limited in the location that was surveyed, but once we start permitting this type of search without a warrant are they going to keep kind of pushing those edges further back where maybe they're searching everybody that was at the capital on January 6 over a period of 6 hours? And, you know, maybe the curtilage of the capital extends all the way to the Washington monument. So that's a million people. I think that's something that the Supreme Court is really struggling with. Like where exactly do you draw that line?

Dave Bittner: All right. I'll tell you what. Let's take a quick break here from our conversation to hear from our show sponsor. We'll be right back after this. [ Music ] All right. And we are back. Let me ask a hypothetical about suppose a crime -- let me back up. I'm thinking of the people who get swept up in this who committed no crimes. So the hypothetical I'm thinking of is what if a crime occurred at a controversial location? A crime occurred at a gay bar. A crime occurred at an abortion clinic.

Ben Yelin: They talked about this in the oral argument, by the way.

Dave Bittner: Go for it.

Ben Yelin: Yeah. I mean it's a great question. It implicates the rights of innocent people. In fact there was a church near where Chatrie robbed the bank and some of the people identified were not in the bank at all. They were at the church. And that matters because let's say you could confine the location just to the bank. Everybody there potentially is relevant to an ongoing investigation because they're either the perp or they were a witness. If you expand that surrounding area then it gets really murky because that -- those people there's obviously no individualized suspicion of them. And now you're going to be obtaining their perhaps very personal location data just because they were, you know, 100 feet away from where a crime took place in a completely different building. Like it's just it's a really difficult question to answer.

Dave Bittner: Yeah. I can just imagine, you know, we're looking for this crime that was committed at an abortion clinic and across the street was the gay bar and, wait a minute, what's Senator Jankowicz [assumed spelling] doing at the gay bar? Right? Like and off we go.

Ben Yelin: Yeah. I mean one of the things that the -- I forget which justice said this, but like, you know, the way the fourth amendment works like there are crimes that take place at sensitive locations. But the way we've dealt with that in the past is you get a warrant. There has to be probable cause that a crime took place there and that you're going to get evidence of that crime. And when you do get that some people who don't want to be implicated might be implicated. Like it sucks that there's a crime at an abortion clinic or a gay bar, but like there is a legitimate law enforcement purpose to figuring out who was there at the time. Who's there as a witness? So it is a complicated question.

Dave Bittner: Yeah. One of the things that struck me in some of the reporting I've seen of this is that the justices didn't seem to be splitting across their typical ideological lines that --

Ben Yelin: They did not. And maybe that's a segue in to kind of the third inquiry here. So we've kind of talked about the first two questions which is whether they can -- should hear this case at all and then whether this is a search. The most complicated question by far is would this meet the fourth amendment's particularity requirement where you have to have a warrant that particularly describes the things to be searched. And what complicates that question is there are actually three searches that take place here. So there's step one where Google searches its own location history database and returns anonymized device IDs that were within that geographic area. That's step one. Step two. Police analyze movement patterns. So is this person coming from this house? And they request additional data on certain devices. Like, you know, this person's suspicious. They went to -- I don't know what would be suspicious before you rob a bank.

Dave Bittner: A gun store.

Ben Yelin: There you go. And then there's step three which is the police obtain subscriber identifying information for selective devices. So I think everybody would agree that step three is a search and you need a warrant supported by probable cause because we're talking about an actual subscriber or individual. The question is whether the fourth amendment is triggered at step one. And I think that's something that the justices just could not agree on. Like is the fourth amendment implicated at all when Google is searching its own location history database and all they are giving to the government is anonymized device IDs? And it's up to the police to do the investigative work. I think there's a deep, deep disagreement on whether that meets the particularity requirement. What the petitioner was saying is that this actually is a search even if the data is anonymized. For one they say any search occurs if private information is exposed to the government. And then this property theory they bring up again in the context of particularity. Like Google examining users' accounts is like ordering a banker to open thousands of safety deposit boxes to see which ones might be interesting. And I think they would see that as violating the particularity requirement, being too close to a general warrant. The government takes the other side and they said that really it's only a search when somebody's identity is revealed. And to get back to your question, Dave, whoa, that was a long road, I think from what I could tell like Justice Gorsuch, Sotomayor, and Kagan seemed very concerned about this question of particularity. And, you know, Justice Gorsuch has kind of his own ideological posture on this, but he strikes me as a swing vote in this case because I think he's generally compared to the other conservative justices more skeptical of law enforcement. And he seemed to be kind of confounded and confused about drawing a line about when the search begins here and how particularized the warrant has to be. And then you saw that from liberal justices as well whereas on the other side you had Justice Jackson who while she emphasized the privacy concerns with modern digital data that people are constantly generating location data, she seemed kind of aligned with the view that part one and part two here don't qualify as fourth amendment searches. That it's really the private location data of an individual is where that search ends up attaching. I mean that seemed to be the tenor for questions. Maybe that was just her strategy for soliciting answers from the representative of the United States in this case, but I thought it was interesting that she was asking questions that would traditionally be associated with a more conservative position.

Dave Bittner: So I'm looking at coverage from the record from recorded future. And their headline is "Supreme Court Signals Location Data Searches Should Require a Warrant." Think that's a fair analysis?

Ben Yelin: You know, I really don't know. I wish I could give you a more satisfying answer. What I think is there are basically two options here. One. They could decide that question. Or two. They could punt and decide on much narrower grounds. I.e was this a search in the first place? Or is this case even justiciable because of the kind of mootness issues we talked about? And if they take one of those out then they can buy themselves a little bit of time before the next case comes and maybe scholarship evolves around this. Maybe the technology changes. If you can decide it on narrow grounds, you know, you are avoiding a major constitutional battle. And you're avoiding setting a precedent here that's going to be applicable to lots of different types of searches including for things like tower dumps which the lawyer for the petitioner was like, "No. No. No. This case doesn't concern tower dumps." But a lot of the justices were like, "Well, obviously whatever we decide in this case is going to implicate tower dump searches." So the stakes are really high here.

Ethan Cook: So I think another thing that we haven't really hit on too much, but I think we've alluded to because we talked about a lot on the government side or from the individual side like our individual rights as citizens as well as on the other side of it from the government's ability to actually execute law enforcement. I think there's a third degree which is the company side. Who the companies are actually querying. And -- and what data they're willing to give up and not. I think it's really telling that Google decided to stop giving this away and that they said that, "We as a company are not comfortable giving out this data to the government." And ended this practice to just avoid I'm sure there was a legal trouble there where they're like, "We don't want to get sued from someone who we, you know, got in trouble or by accident got in trouble, whatever, from giving out this data." But I think there's also a degree of which that, you know, these companies are obviously massive data brokers. They collect all sorts of information. And they make a ton of money selling that information. And it seems worth diving in to. And I'm not sure, Ben, if you have any thoughts on that, or Dave as well, about the, you know, kind of them almost clearing up the legal side of it saying that, "If we just don't collect the data then we don't have to give it up." And that ends the problem to begin with. Like there is no problem. And I know that's what one Supreme Court justice was arguing. But I think how can we apply that to the vast amounts of other data the government can query.

Ben Yelin: This is actually really funny. I think it was Kagan who asked this question. I'm not 100% sure. But they were like, "Well, what if Google sells the data?" And this was to the petitioner. And the lawyer was like, "They're not going to sell the data. That's impossible." She's like, "Just bear with me. What if they sell the data?" Just like, "No." Like they have mechanisms. They have policies where they're not going to do that. And I think the --

Ethan Cook: I don't know if I agree with that, but sure.

Ben Yelin: Yeah. I actually don't agree with it at all either. The crux of the question, though, was like yes maybe Google changed its practices for now, but not only are there are a ton of other data companies that collect data, Google could always go back and change its policies. Maybe they want to be in the good graces of a presidential administration. That administration wants geofence data and so they start collecting geofence data again. They can do it. You know. That's a private company. They could decide to keep that data again without any sort of input from the public. So the fact that they made a decision once to discontinue this collection I think doesn't resolve the controversy here. And I would be disappointed if that's what the justices relied on in punting this case because there are just so many different things that Google could do and other companies could do that I think we need a firmer resolution here.

Dave Bittner: So I have a general Supreme Court question for you, Ben, because what you are talking about brought up something I hadn't really considered before which is I guess my assumption had been that the Supreme Court has a fundamental desire for certainty. And what you're saying is that sometimes they may choose ambiguity and kick it down the road.

Ben Yelin: Totally. I think especially Chief Justice Roberts who's an institutionalist if you can avoid shaking the boat, if you can avoid setting a new precedent that might disagree with previous precedents, that is a canon of constitutional interpretation. You try to avoid those major controversies. If there's a little out there, you know the case is moot, the case isn't ripe, somebody doesn't have standing, those are ways that justices can avoid the merits and I think sometimes they do prefer to do that because they're reluctant to set a precedent or they think it's not their position as judges to resolve an issue one way or another. They think that it's beyond their purview. They should only decide what they are forced to decide. And Congress should be the one really wrestling with these policy issues of what counts as a particularized warrant or what's the distinction between content and non content. So I think it's very true that at least in a lot of cases they decide to choose the narrowest grounds. Now I can hear a million people in the resistance yelling at me and saying like, "Well, what about the decision that overturned Roe v Wade?" Yes. That was an exception. There were five justices who were willing to shake the boat in that case. Chief Justice Roberts who is conservative, but was in the minority in that case, basically said like, "We decided a question that we weren't forced to decide." And that goes against his ethos of the Supreme Court.

Dave Bittner: All right. Well, before we wrap it up, any final thoughts here, Ethan? Anything you want to add?

Ethan Cook: Yeah. I think the court case as a whole is a small slice of probably some cases that I think are going to come down the line over the next decade or so as we only continue to have -- because this case, this incident, ties back several years ago. And I'm sure there are active court cases going through right now asking very similar questions. And if they choose to punt which I wish they don't, but I think they will, I think it won't resolve anything and we're just going to have this question pop up again in three years. And four years, etcetera. I don't think this really resolves anything if we punt. And if anything it gives -- it will open the door to even more intensely who questions is my kind of prediction.

Ben Yelin: Yeah. My prediction is that we're going to have like a 200 page opinion with a lot of different concurrences and dissents. There's going to be I think a unanimous decision that Chatrie himself is not going to be freed from incarceration, that the evidence is not going to be suppressed. But there's going to be a disagreement as to why. So I think at least three or four conservative justices will say, "We shouldn't have taken this up in the first place. Good faith exception applies. Let's leave the question of geofence warrants for another day." You might get other justices who are focused intently on good faith exception and then perhaps the liberal justices who can get in to the nitty gritty of the particularity requirement and try and wrestle through those line drawing issues. So I think it's going to be I'm anticipating that I'm going to unfortunately have to spend a lot of time reading this decision when it comes out.

Ethan Cook: 200 pages is light reading.

Dave Bittner: Don't throw Ben in the brier path. He's going to have to read a long Supreme Court decision.

Ben Yelin: Really I'm the victim here is what I'm saying.

Dave Bittner: Yeah.

Ben Yelin: One thing I could see happening is they might just say, "We're going to assume because we want to resolve the question - the particularity requirement question for warrants" They might just assume arguendo that this was a search. That's something that I've seen other scholars kind of postulate, if you will. That's something that could happen.

Dave Bittner: Yeah. Ben, what's our timeline?

Ben Yelin: End of June. So it's not as long of a timeline as sometimes we usually get for these cases. The Supreme Court usually releases its final decisions -- there are exceptions. I think one year it got in to July. Maybe that was because of COVID. But they're usually done with their decisions for a Supreme Court term by the last week in June. So stay tuned. Maybe the three of us can gather then and break it all down.

Dave Bittner: That's right.

Ethan Cook: Yeah. I'm sure there's a lot on the docket.

Dave Bittner: Yeah. Yeah. Oh. You know what? We should all just get on Polymarket.

Ben Yelin: Yes. Yeah. You can bet on anything now.

Dave Bittner: Yeah. That wouldn't be unethical.

Ben Yelin: Not at all.

Ethan Cook: I'm going to bet that we're going to talk about this case again. I'm not betting on predicting. I'm predicting.

Ben Yelin: Predicting. Yep. In case anybody's listening, Ethan is joking because that could lead to indictments.

Ethan Cook: I don't even have an account.

Dave Bittner: Oh. Everything's a liability. You know what? Let me get us out of here. [ Music ] That is "Caveat" brought to you by N2K CyberWire. We'd love to know what you think of this podcast. Your feedback ensures we deliver the insights that keep you a step ahead in the rapidly changing world of cybersecurity. If you like our show please share a rating and review in your favorite podcast app. Please also fill out the survey in the show notes or send an email to caveat@n2k.com. This episode is produced by Liz Stokes. Our executive producer is Jennifer Eiben. The show is mixed by Tre Hester. Peter Kilpe is our publisher. I'm Dave Bittner.

Ben Yelin: I'm Ben Yelin.

Ethan Cook: And I'm Ethan Cook.

Dave Bittner: Thanks for listening.