Google searches are now a byproduct of existing in the age of information. Need a place to eat nearby? You google it. Want to know the score of last night’s game? You google it. Want to know the best medicine to fix that headache? You google it (and hopefully consult a doctor). Searching the internet is second nature to Americans. If we have a question about quite literally anything, we google it.

Unbeknownst to the average internet user, law enforcement officers routinely issue search warrants to internet companies, ordering them to turn over specific instances of search queries. Search engine companies review their search history logs and turn over queries along with the related IP addresses. Law enforcement then uses these IP addresses to identify suspects. The warrants used to obtain the information are known as “reverse keyword warrants.”

The Fourth Amendment, which protects individuals from unreasonable searches and seizures, also requires searches to be particularized and based upon probable cause. For a warrant to fall under those requirements, the action by law enforcement must first qualify as a search. If there is no search, then there is no constitutional question. In Katz v. United States (1967), the Court held that in order for a governmental action to be considered a search, the action must contravene a physically private space or a reasonable expectation of privacy. Further muddying the waters, they added that an expectation of privacy is reasonable when a person both subjectively expects something to be kept private and society is willing to accept that expectation.

To varying degrees, Americans expect their internet searches to be private. Reverse keyword warrants have been constitutionally challenged all across the country. In each case, a court-created carve-out has frustrated the challengers: the third-party doctrine. This doctrine holds that individuals have no reasonable expectation of privacy over information they voluntarily reveal to a third party, leaving internet searches outside the bounds of constitutional protection. When an internet user queries a search engine, they knowingly reveal the content of their search to a third party. Under the third-party doctrine, they have no privacy claim to that information.

This doctrine has always run into problems under views concerned with the Constitution’s original public meaning. As the Supreme Court has grown more originalist, its view of the doctrine has soured. Starting in 2012 with the Court’s ruling in United States v. Jones, the justices began recognizing the shortcomings of the doctrine. At a time when almost every aspect of life is exposed to a third party, the third party doctrine, as Justice Sotomayor wrote, “is ill suited to the digital age.” In Carpenter v. United States (2018), the Court held that Cell Site Location Information, which is created by merely owning a phone, was an exception to the third-party doctrine. Since phones are such an indispensable aspect of society, one could not conceivably opt out of sharing the information.

This past term, the Court decided Chatrie. The opinion was novel in two ways. First, it broke from previous third-party doctrine exceptions the Court had carved out. Before Chatrie, the Court generally gave great weight to the length of surveillance at issue and the amount of intimate information obtained. Now, even a short window of location history is a search. Second, this marked the first time the Court has affirmatively given protection over information voluntarily given to a third party. Location history has true opt-out options, meaning it is not indispensable for operating in modern society. According to the facts of the case, only about two-thirds of Google users actually had location history turned on. Users had to affirmatively agree to Google storing their location. Chatrie went a step further than Carpenter, holding “a cell-phone user is not to be viewed as sharing private information with third parties - which can be freely passed on to the government - just by doing the ordinary things cell-phone users do.” This holding could have revolutionary consequences.

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The holding fundamentally changes the threshold for what qualifies as a search. Reverse keyword warrants used to survive only because courts viewed internet searches as information “voluntarily” handed to a company. Chatrie puts a dent in this reasoning. A keyword warrant operates much like location history. It starts with no suspect, and asks a private company to mine an archive of other people’s data, based on circumstantial evidence at best, and a hunch at worst. If two hours of location history qualifies as a search, requesting the IP addresses of everyone who typed an address or a victim’s name certainly passes the test. Lower courts will still fight over probable cause and particularity, but they will no longer obfuscate the question by appealing to the third-party doctrine.

The jury is still out on how reverse keyword warrants will fare moving forward. Lower courts have only just begun applying Chatrie. As those cases continue to percolate through the courts, Chatrie should begin to undermine reverse keyword warrants. Search history is potentially even more revealing than location history. It goes beyond dots on a map, creating a catalog of the private thoughts and questions of every user. Search queries are no doubt, to quote Chatrie, an “ordinary thing cell-phone users do.” With the full weight of the Fourth Amendment extended to digital content, virtual privacy may stand a fighting chance.

Benjamin Semark is the Executive Development Editor for Liberty University's Undergraduate Law Review. He is specifically focused on Fourth Amendment jurisprudence, government surveillance, and the civil-liberty implications of big-data analytics. He is passionate about bridging legal analysis and technology policy to safeguard constitutional rights in the digital age.

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1. Bost v. Illinois State Board of Elections (Jan. 14)
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