Tangle - SCOTUS hears a novel Fourth Amendment challenge.

Starting point is 00:00:00 From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon and good evening, and welcome to the Tangle podcast, a place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Sullen, on today's episode. We're talking about the Supreme Court case around geo-fencing. Pretty interesting new topic. It is something the court has not really taken on yet. It's related to search and seizures and the Fourth Amendment. We're going to talk about exactly what happened. Share some views from the left and the right. And then, as always, I'll give you my take today.

Starting point is 00:00:51 I'm joined by Audrey Moorhead, who's hosting our podcast with me. Before I pass it over to Audrey, I do want to give you a quick heads up. I'm calling on all Minnesotans. That's right. This Saturday, May 2nd, I'm speaking at St. Olaf College in Northfield, Minnesota, about 45 minutes outside Minneapolis. I'm going to be moderating a panel on innovations and journalism at 10.30 a.m. Central, and then I'll be delivering a closing address for the conference at 2.30 p.m. If you are in the Twin Cities and you're

Starting point is 00:01:24 free on Saturday, you should consider coming out. It is free and open to the public. There are no tickets required. And there's a link to more information on our episode page. With that, I'm going to send it over to Audrey, and I'll be back for my take. Thanks, Isaac. Here are today's quick hits. Number one, we have a breaking hit, which is that the Supreme Court ruled in a six to three decision that Louisiana must redraw its congressional map,

Starting point is 00:01:57 finding that the state improperly used race to draw districts that helped minority communities elect their preferred candidates. The decision weakens Section 2 of the Voting Rights Act, which prohibits districting practices that give members of a racial group less opportunity than others to elect candidates of their choice. Number two. A grand jury in North Carolina indicted former Federal Bureau of Investigation Director James Comey on charges of making a threat against the president and transmitting it through interstate commerce. The case is related to a picture Comey posted on his Instagram account in May 2025 that showed seashells arranged to read 8647,

Starting point is 00:02:35 which some interpreted as a call to violence against President Trump. Comey said he is innocent and will fight the charges. Number three, the United Arab Emirates announced it will leave the organization of the petroleum exporting countries, or OPEC, on May 1st, citing the country's long-term strategic and economic vision and evolving energy profile. Number four, King Charles III delivered an address to a joint meeting of Congress, highlighting the historic relationship between the United States and Britain and calling for a continued alliance.

Starting point is 00:03:06 Number five, the Federal Communications Commission announced in a filing that it is reviewing ABC's broadcast licenses, saying that ABC's parent company, Disney, may have corporate diversity policies that violate anti-discrimination rules. The network's licenses were not due to be reviewed until 2028 at the earliest, and the announcement follows President Donald Trump's criticism of ABC's late-night host Jimmy Kimmel. Number six, the Supreme Court will hear arguments on Wednesday in a challenge to the Trump administration's attempt to revoke temporary protected status for Haitian and Syrian nationals. Moving now to the Supreme Court, the court is now hearing arguments in a landmark case that could impact the Fourth Amendment. Justices must now weigh the legality of geoffence

Starting point is 00:04:00 warrants and whether investigators are justified in scanning cell phone data in hopes of finding a suspect or person of interest. On Monday, the Supreme Court heard oral arguments in Shatri v. United States, a case exploring whether the practice of scanning cell phone data of individuals based on their proximity to a crime scene is constitutional. The case is the first time the Supreme Court has considered the use of geo-fencing warrants, which enable the police to cast wide digital drag nets to investigate a suspected crime. Challengers say the practice is a violation of the Fourth Amendment's protection against unreasonable searches, while the government argues that customers forfeited the expectation of privacy by sharing their data with large private data providers.

Starting point is 00:04:43 The justices appeared split on the decision after two hours of oral arguments. the court is expected to issue its decision before the end of the summer. For some additional context, the man at the center of the case, Akello-Shatry, was indicted on charges of armed bank robbery in Midlothian, Virginia in 2019. According to the indictment, Shatri ordered the manager to empty the safe at gunpoint, then fled with approximately $195,000. Police reviewed the bank surveillance footage and observed a man who appeared to be the thief, talking on his cell phone, then applied for a geoffensive,

Starting point is 00:05:18 warrant directed at Google to search its collected cell phone location information. Investigators used the data to narrow their search perimeter to a 17-5-acre area around the bank, eventually leading to Shatri's identification and prosecution. Shatri conditionally pleaded guilty to armed robbery in 2019 and was sentenced to nearly 12 years in prison. Shatry appealed the decision to the Fourth Circuit Court of Appeals in 2025, which affirmed the use of geoffence data in his conviction. The Supreme Court agreed to to hear the case in January 2026. The justices appeared split during oral arguments, with some Republican appointed justices showing deference to the government's use of geoffence data, and some

Starting point is 00:05:59 Democrat appointed justices appearing sympathetic to arguments that the use of this data is unconstitutional. Justice Samuel Alito emphasized that Shotri opted in to sharing his location data with a third party, and questioned whether geofencing warrants against companies collecting this data were categorically different from search warrants against individuals. Justice Sonia Sotomayor appeared to disagree, comparing the government's acquisition of cell phone data to an illegal police search. Justice's Amy Coney-Barratt and Elena Kagan both appeared ambivalent during questioning. Justice Barrett focused her questions on when a cell phone user could have a reasonable expectation of privacy with their data, suggesting geofencing warrants applied to public spaces may be treated differently from usage in private spaces.

Starting point is 00:06:42 Justice Kagan asked repeatedly if the company's use of the data could determine the court's decision. Now we'll get into what the left, right, and legal experts are saying about the arguments in Shatry. Then I'll pass it over to executive editor Isaac Saul for his take. We'll be right back after this quick break. First up, what the left is saying. Many on the left suggest the court will issue a narrow ruling reining in the use of geoffence searches. Some say a ruling against Shatri would be a blow to all Americans' rights. In Vox, Ian Milheiser said the Supreme Court seems a bit nervous

Starting point is 00:07:32 about letting the police track you with your phone. Most of the justices' questions to Adam Unikowsky, the lawyer for a criminal defendant who was convicted of robbing a bank, appeared skeptical of Unikowski's claims that the Constitution places strict limits on the government's ability to track people through their cell phones. But in the second half of the argument, after Justice Department lawyer Eric Fagan took the podium, most of the justices appeared even more concerned

Starting point is 00:07:56 about some of the implications of Fagan's arguments. As Chief Justice John Roberts noted shortly after Fagan began, his argument, if the government has too much ability to track people using their cell phones, it could potentially learn the identity of everyone who attended a particular religious service, or everyone who ended a particular political meeting. Meanwhile, several other justices appeared worried that the government lawyer's arguments would permit police to comb through many people's emails or their personal calendar and photos without first obtaining a warrant. It appears likely that the court will hand down a cautious

Starting point is 00:08:29 decision in Shatry, one that reads Carpenter to require police to always obtain a warrant before they attempt to track someone using their cell phone. In balls and strikes, Madaba K. Denny asked, does your use of Google Maps give cops permission to track your location? The Fourth Amendment prohibits unreasonable searches and seizures. And to that end, it explicitly requires that warrants be based upon probable cause and that they particularly describe the place to be searched and the persons or things to be seized. This means that police, police aren't supposed to go on fishing expeditions willy-nilly. But here, the detective on the case, Hilton, indiscriminately searched the phones of people inside a circle with a diameter spanning

Starting point is 00:09:09 three football fields and developed his suspicion along the way. The question now before the Supreme Court is whether the execution of this specific geofence warrant violated the Fourth Amendment. But the answer will affect many more people than just Shatry. Google received its first geofence warrant in 2016. Today, Google receives over 11,000. geo-fence requests a year, representing over a quarter of all warrants it receives in the United States. And hundreds of millions of Google users have location history enabled on their devices. Shatri versus United States will determine if, when people switch these features on, they unknowingly relinquish their constitutional rights.

Starting point is 00:09:49 Next up, what the right is saying. The right is mixed on the case, with some saying geofence searches only apply to those who have willingly given up their location data. Others say a ruling for the government would be a blow to the Fourth Amendment. The Wall Street Journal editorial board wrote about a Fourth Amendment tech showdown at the Supreme Court. Applying old principles to new technologies can be tricky, but Shutri versus U.S. shouldn't be. The data that led police to Mr. Shutry came from an optional Google feature he enabled, recording his location every few minutes. At the time, this information was stored on Google's servers accessible to the company.

Starting point is 00:10:36 The robber was on surveillance tape, using a record. a cell phone, so police sent Google a warrant for anonymous data on any devices within 150 meters of the crime. Solid work detective. Yet the convict argues this was an illegal search. Mr. Shatry and his allies on the legal left want the court to say that the Fourth Amendment effectively bars all geoffence warrants. No more asking a phone company which devices pinged a tower by the murder. Would detectives be limited to inquiring about specific customers? It's difficult to see this as the right constitutional balance between privacy and public safety. Police can dust a crime scene for fingerprints

Starting point is 00:11:11 and get surveillance footage or nearby toll booth records without identifying the suspect in advance. In the Washington Times, Cheryl K. Chumley called geoffence warrants a Fourth Amendment nightmare. This is how crime fighting always goes. Police want more power, government demands more authority, law enforcement insists on broader interpretation of the Constitution, and the justification always, always, always is for,

Starting point is 00:11:36 safety and security, with those opposing the encroachment on their liberties and privacies, being peppered with the somewhat hostile and always condescending, well, if you're not doing anything wrong, you have nothing to worry about. How about the worry of the government's ever-intruding expansion into the lives of innocent American citizens? This is the type of warrant used to identify hundreds of attendees of the January 6, 2021 protests on Capitol Hill, the type of warrant that allowed law enforcement to arrest and prosecute more than 1,500. These are the same of warrant. These are people who, at the time of the issuance of the warrant, haven't indicated any intent to commit a crime. Just because an American carries a cell phone does not mean the government has the right to track

Starting point is 00:12:16 and surveil using data from that phone without going the normal Fourth Amendment warrant route. And finally, what legal experts are saying? Many legal experts frame the case as a key test for the Fourth Amendment. Some expect the justices to send the case back to the lower courts with new guidance. For New York Law Journal, Paul R. Townsend called the case a fork in the road for the Fourth Amendment. When this warrant was issued, the government had no identified suspect, no particular device in mind, and no individualized probable cause. Rather than developing suspicion directed at a specific person, it compelled Google to disclose data concerning every individual within the designated area and worked backward to identify a target. The government argues that this is akin to a more modern, large-scale canvassing effort, where law enforcement

Starting point is 00:13:04 talks to strangers to inquire whether they might have any relevant information to share which may aid in the investigation. Denying the government the ability to utilize contemporary technology to solve crimes makes society less safe. The implications of this case are profound. The framers rejected general warrants because they conferred unchecked discretion upon the government while offering insufficient protection to the individual. The Supreme Court will now decide whether Geoffence warrants present the same danger in modern form. The majority opinion in this case will shape future investigative techniques

Starting point is 00:13:37 in an increasingly digital era. Finally, in reason, Orn-S-Kare offered a few thoughts on the Shatry oral argument. The justices seem likely to reject the broader arguments Shutri made that Geoffense warrants are categorically unconstitutional

Starting point is 00:13:51 or cannot be drafted in ways that could identify suspects. They seem likely to rule that Geoffense warrants can be drafted constitutionally, rejecting the Fifth Circuit's view in Smith. I suspect they will likely hold that GFense warrants have to be limited in time and space and leave the details to lower courts.

Starting point is 00:14:08 There were some justices who wanted to address the multi-step process of Google's warrant procedure and say new warrants were needed for those steps. But I don't know if the majority will get that far. Late in the argument, the government seemed in a conciliatory mindset, perhaps sensing a victory on the warrant issue that it didn't want to place at risk. But Smith v. Maryland expressly holds that voluntary disclosure from the home that reveals presence in the home is still not a search. And more broadly, there's no practical problem with getting warrants for location history because the technology doesn't exist anymore, and probable cause was

Starting point is 00:14:41 not challenged back when there was. In any event, what matters going forward is all the other online records that exist online, IP logins, etc. That's it for what the left, right, and law experts are saying. Now it's time to head to Isaac for his take. All right, that is it for the left and the writer saying, which brings us to my take. Imagine if a similar scenario occurred 75 years ago, before geo-fencing location were even a concept, O'kello-Shotri walks into a bank. He hands them a note demanding money. Someone presses one of those silent alarm buttons that they have in heist movies that I assume also exists in the 1950s, and the bank's block gets swarmed by police. Imagine now that the cops show up in time to make a perimeter around 100 or so individuals who were in or around

Starting point is 00:15:45 the bank at the time of the robbery, would they then be able to search those 100 individuals, their person, their bags, maybe even their vehicles, to check for the stolen cash? It seems to me that the answer is yes. Police could reasonably suspect anyone around the bank and that would be a reasonable search. Here is Shotri's lawyer in real life during oral arguments, quote, even if the search materialized only when the data was found and exposed to the police, the warrant would still be unconstitutional because there was not probable cause to search the virtual private papers of every single person within the geofence merely because of their proximity to the crime, end quote.

Starting point is 00:16:25 I'm not quite convinced. How much more protected is a virtual geoffence than, say, just looking at a crime scene and learning who is in the vicinity of a crime and then searching those people? This situation contained some novel elements, of course. For instance, people in the 1950s weren't walking around with their entire location history contact lists in every picture they'd ever taken in their bags. Then, there's the central legal question at play.

Starting point is 00:16:51 Accessing and searching people in a geoffence requires law enforcement to acquire and process data held by a private company. They aren't walking up to a crime scene and stopping people nearby. They're going to a private company long after a crime occurred and asking them to hand over any information about everyone who might have been there. Even for someone like me, who holds quite strong libertarian views on issues like privacy, speech, and police conduct, the facts of this case make me pretty sympathetic to law enforcement. They first tried to solve a robbery in a traditional manner. Then, while reviewing the bank's security footage, they noticed

Starting point is 00:17:27 the thief was on his phone during the robbery. They sought an anonymized list of nearby users from Google, narrowed that anonymized list, then compiled. identifying information only for a small subset, in this case just three of the people they believe to be suspects. And it worked. They got the robber. On top of that, the government only accessed data that users had to opt into sharing with Google. Roughly two-thirds of Google users don't actually hand over the location data history that was used to crack this case, according to the government's argument. As Chief Justice Roberts said, if you don't want the government to have your location history, you just flip that off. He compared this to not wanting someone to peer into

Starting point is 00:18:08 your window and how you can close your window or the shades. But that actually was an analogy that turned me against the government's argument. What immediately came to mind for me was that if I choose to leave my window shades open at night sometimes, that does mean people who could walk by can peer into my home. I understand that trade-off. But doesn't mean those same people could set up a camera outside my house, record footage of my family in my home, and then be compelled to turn it over to law enforcement if they ask for it? That part, I'm not so sure. When I write about Supreme Court rulings, I typically use a two-pronged analysis. What do I think about the legal arguments and what are the practical implications here? The court hasn't issued its ruling yet, but in this particular case,

Starting point is 00:18:51 the legal arguments were genuinely some of the most fascinating I've ever read or listened to, and I'm not at all sure how the court will land. This is one of those cases. where both sides made such compelling points about the privacy we should be granted or can expect and the downstream implications of this case going either way that I felt twisted into knots at the end of oral arguments. Yet a few moments ultimately moved me in favor of Shatri and against the government. First, Justice Gorsuch emphasized genuine concerns about the implications of any broad ruling in favor of the government. Gorsuch asked directly what would it mean if Shotry had no reasonable expectation of privacy with his location data since he voluntarily shared it with

Starting point is 00:19:32 Google. Does this logic extend to your Gmail, your Google Photos, your Google Calendar, your Google Docs? Is all of that suddenly accessible without a specific warrant because you consented by using Google services? That line of questioning as a Google user stopped me in my tracks. Deputy Solicitor General Eric Feigen was prepared for this question and claimed the court had always treated the contents of one's personal thoughts as recorded differently from one's exposed public location, which is all that's at issue here. I couldn't exactly say why,

Starting point is 00:20:04 but I didn't find that a particularly satisfying answer. And then the justices illuminated why through additional questions. Gorsuch, Kagan, and Barrett together pressed Feigen. What if the location data were precise enough to track someone's movements inside their home? Would the government's position be that this data was accessible without a warrant, Feigen clearly gets uncomfortable, arguing that maybe the government would argue that, but it doesn't matter, because in this case, those GPS intervals weren't precise enough.

Starting point is 00:20:33 Barrett then trapped him. Okay, so if the location data could tell us when someone went to the bathroom or their bedroom, are you saying that accessing that data without an individual warrant wouldn't be a search and thus a Fourth Amendment violation? Figen conceded eventually that under the government's theory, that level of specificity would still probably not constitute a search, but he understood this was a very difficult argument to sustain, to which Gorsuch quipped, yes, because it's totally inconsistent with your theory, which drew audible laughs in the courtroom. When I'm in doubt, my inclinations are always toward privacy. So here, even while believing geo-fencing warrants in general seem constitutional, I hope the court

Starting point is 00:21:15 clearly defines a very high bar for accessing data from a private company. The arguments themselves made me think a narrow ruling might be coming, though I'm unsure exactly how or in which direction. Ultimately, this is the very first Supreme Court case taking on the Fourth Amendment implications of geofencing and the court's past rulings are colliding head on with the new world we live in now, one where technological questions like this need to be processed through centuries-old laws, precedent, and legal theory. The implications of how the court takes its first steps into this new terrain are huge. And how they will do that is for now, still unclear. We'll be right back after this quick break. All right, that is it for my take, which brings us to your questions answered. This one's

Starting point is 00:22:13 from Robert in Minneapolis, Minnesota. Robert said, why does Tangle rely on East and West Coast news sources to the exclusion of resources in quote-unquote flyover country? Thanks for the question, Robert. We've seen you offer a more detailed version of this question in the comments on past articles. happy to try and address it head on. You suggest, I think, that Tangle is perpetuating an insidious geographical bias in our reporting by relying primarily on outlets and reporters based on the coast. Under this theory, we've created our own kind of Tangle bubble that misses nuances in reporting that might emerge if we reviewed more sources from regions like the Midwest than the South. This is a fair point. Politics coverage tends to concentrate among a few powerful outlets,

Starting point is 00:22:58 and those outlets tend to gravitate toward geographical sectors, most notably New York City and Washington, D.C., which is understandable because people seeking a particular career will gravitate towards areas with a concentration of opportunities, the way big tech is centered in the Bay Area, and many logistics companies have hubs in Chicago. However, that can create a subtle bias over time, leading to viewpoints that are naturally colored

Starting point is 00:23:23 by living in New York instead of places like St. Louis or Phoenix. However, I'd offer two points of pushback against this contention. First, be careful not to conflate a news organization's name with its geographical footholds. Just because an organization is called the Washington Examiner doesn't mean everyone who works there is based in Washington. Just as people work at Tangle, an organization headquartered in Philadelphia, work and live across the country, so too do these outlets have reporters and news desks representing the entire United States. Axios is a national news organization with reporters across the country and in smaller

Starting point is 00:23:59 cities and states. The New York Times has a Chicago bureau, and if a major story breaks in, say, Minnesota, they typically have reporters who live and work in that area to take the lead on covering this story. Second, we often look for coverage from local outlets to represent different sides of the debate when we pull sources to quote from. We'd love to quote these smaller outlets more regularly on bigger national issues and not just ones local to them. However, the regional outlets don't always issue editorials on things like Supreme Court rulings, which was our topic today. We often find the arguments that represent the whole political spectrum come from outlets

Starting point is 00:24:35 that specialize in national politics, but that doesn't mean we'll stop looking. All right, that is it for your questions answered. I'm going to send it back to Audrey for the rest of the pod, and I'll see you guys tomorrow. Have a good one. Peace. Thanks, Isaac. Now we have one of our new sections, a deeper look. In the centuries since the Fourth Amendment was ratified, the Supreme Court has ruled on key issues related to the amendment on several occasions.

Starting point is 00:25:06 One case with particular relevance to Monday's arguments in Shutry v. United States was Katz v. United States from 1967. Charles Katz was a prolific gambler who was known to use a public telephone booth to communicate handicaps to bookmakers in other states. Handicaps are used to level the playing field for betting on matchups between a favorite and an underdog. The FBI attached a listening device to the outside of the phone booth and recorded Katz's conversations, then used the recordings to arrest and convict him for illegal gambling activity. Katz appealed his conviction on the grounds that the recordings were made

Starting point is 00:25:40 without a warrant, violating his Fourth Amendment rights. In a seven-to-one decision, the court cited with the gambler, finding that Fourth Amendment protections extended to people's reasonable expectations of privacy, regardless of the physical space they are in. Justice Potter-Stewart, wrote in his opinion, quote, The Fourth Amendment protects people, not places. And finally, here's our Have a Nice Day story. KRAAS gene mutations are among the most common genetic drivers of cancer, occurring in approximately 90% of pancreatic cancers and about 40% of colorectal cancers.

Starting point is 00:26:15 For years, scientists have struggled to find a way to target the mutations with drugs. Now, a different approach is showing promise, a one-size-fits-all vaccine. The vaccine teaches immune cells to recognize and target cells with KRAS mutations. And unlike other cancer vaccines, it does not need to be personalized to the patient. Results of phase one of a trial showed that 85% of participants who received the vaccine had an immune response to KRAS mutations, while 70% had an immune response triggered to other tumor cells that were not even in the vaccine. NBC News has the story, and you can find it in the show notes. All right, everyone. That's it for today's episode.

Starting point is 00:26:54 If you want to support our work, please head to reetangle.com, where you can sign up for a newsletter membership, podcast membership, or a bundle membership that gets you a discount on both. We will be right back tomorrow. For Isaac and everyone else, this is Associate Editor Audrey Moorhead, signing off. Have a great day and peace. Our executive editor and founder is me. Isaac Saul and our executive producer is John Wall.

Starting point is 00:27:18 Today's episode was edited and engineered by Dewey Thomas. Our editorial staff is led by managing editor Ari We Weitzman with Senior Editor Will Kback and Associate Editors Audrey Moorhead, Lindsay Canuth, and Bailey Saul. Music for the podcast was produced by Diet 75. To learn more about Tangle and to sign up for a membership, please visit our website at retangle.com.

Tangle - SCOTUS hears a novel Fourth Amendment challenge.

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