The recent Supreme Court argument in Chatrie v. United States sums to an uneven future for digital privacy. If the Court tackles the question whether a geofence warrant can pass Fourth Amendment muster, it seems unlikely to clear up what Fourth Amendment muster is.

So lock up your stuff. The law won’t be there for you.

A geofence warrant helped the government find Okello Chatrie and convict him of robbing a bank. Such a warrant requires a service provider to turn over information about all people who were at a certain location at a certain time. Data repositories that allow such demands never existed before, so the validity of the warrant served on Google in this case is a novel constitutional question. I wrote earlier about the broader implications.

Aptly, this Advisory Opinions podcast (starting at 47:14) catalyzed my appreciation of Justice Samuel Alito’s line of attack during oral argument: “You’re asking for . . . basically a law review article on a subject that’s largely unexplored by our precedents,” he said to Chatrie’s counsel. A look from Advisory Opinions’ legal generalists found that, yes, this is pretty much an advisory opinion case.

Nothing the Court does is likely to change the outcome for Chatrie, as the trial court found good faith on the part of the government agent seeking the warrant. That excuses the constitutional violation the court also found. So deciding the search and seizure merits violates the rule against decisions not honed by the arguments of parties with something to gain.

Also, Google has changed how it stores customers’ location data—moving it from the cloud to their phones. If you want policymaking, there won’t be future cases guided directly by this one, because these facts won’t recur. So maybe Chatrie should be dismissed as improvidently granted.

I argued differently that the Court should turn aside this case. The court below didn’t consider the issues I believe are most necessary for a decision. Property rights and contracts nest with a textual, originalist interpretation of the Constitution. The Fourth Circuit would not touch them, so the case should go back to that court.

Especially given the poor posture of the case, one worries that Alito and Justice Clarence Thomas might lean against using a tool as powerful as textualism because of what might result. The full meaning of the Fourth Amendment, which was inspired by the depredations of King George III, might do violence to the depredations of a later George. Not Washington. Bush II, in prosecuting his war on terror.

Justice Neil Gorsuch, as strong a legal intellectual, seems more likely to let the chips fall where they may. His thinking in Carpenter v. United States helped shape the arguments coming before the Court, including my own, and he seems a reliable textual originalist, which happens to be good for privacy.

Justice Eleana Kagan brought a through-line to her questioning. She pursued the idea that a geofence warrant is analogous to a search of every locker in a storage facility. The government’s counsel argued unavailingly that digital storage containers are transparent, so the government can have Google look through them.

There appear to be enough votes for a privacy protective decision, but it’s likely to fall back on “expectations of privacy,” the sensibility that location data should be private. With the most ardent textualists sitting the case out, Justice Gorsuch will not prevail on others to rely on the legal reasons why people expect privacy. (It’s because they still own the things placed in storage. Whether tangible or digital, they’re bailments.) I would love for Justices Amy Coney Barrett or Brett Kavanaugh to surprise me by seeing what Gorsuch sees and then calling it that way.

Instead, we’ll have a dog’s breakfast of a decision, with those opt-outs and a variety of competing reasons for a Chatrie win. That means little guidance on administering the Fourth Amendment. Hedging language will limit the ruling to this set of facts, never to be repeated. Into that vacuum will rush the thesis that there’s a Court-crafted “balancing” test. Balancing tests are a sort of legal vomitus on which academics breakfast.

Because of bad law in this area, I’ve been curmudgeonly about cloud services since the beginning. Chatrie will make it no wiser to rely on legal protections. You must lock up your own stuff. You can decline to use cloud services much of the time and back up your content on your own storage devices. You don’t have to use domestic/domesticated email service providers. Use Proton Mail instead. Turn off your computer. Throw away your phone. Cast your gaze out the window. There’s a rich life to be—hang on, I just got a text.