([Such awareness] may alter the relationship between citizen and government in a way that is inimical to democratic society. (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 371 U.S. 471 (1963). It may also include addresses, phone numbers, birth dates, social security numbers, payment information, and IP addresses, among other information.174174. The back-and-forth that law enforcement and private companies often engage in, whereby officials ask companies for additional location information beyond the scope of the approved warrant, raises distinct concerns. Courts are still largely dealing with the threshold question of whether different forms of electronic surveillance count as searches at all, see sources cited supra note 39, an inquiry that can be avoided through legislative solutions. Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. Mobile Fact Sheet, Pew Rsch. In other words, before a warrant can be issued, a judge must determine that a warrant application has sufficiently established probable cause and satisfied the requirement of particularity.5050. . Here's another rejection covered by Techdirt this one arriving nearly a year ago . at *1. . Although these warrants have been used since 20162626. Google received more than 20,000 geofence warrants in the US in the last three calendar years, making up more than a quarter of all warrants the tech giant received in that time . New Resources Available for Password Manager Apps. wiretaps,9898. The warrant was thus sufficiently particular. Particularity was constitutionalized in response to these reviled general warrants.9595. 19-cr-00130 (E.D. Law enforcement gets a warrant from a judge, then serves it to Google or Apple. zS In Berger v. New York,8484. and anyone who visits a Google-based application or website from their phone,4444. 18-5276)). Search Warrant, supra note 5. Probable cause for a van does not extend to a suitcase located within it,119119. See Arson, 2020 WL 6343084, at *5. Katie Benner, Alan Feuer & Adam Goldman, F.B.I. MetLife, Inc. v. Fin. However, wiretaps predict future rather than past criminal conduct, see United States v. Grubbs, 547 U.S. 90, 95 (2006), and thus raise different concerns with respect to probable cause and particularity. Id. Id. This Gizmodo story states that it ranges "from tiny spaces to larger areas covering multiple blocks," while the warrant in WRAL's recent story encompassed "nearly 50 acres.". Google Amicus Brief, supra note 11, at 12. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. The results were stunning. The bill would also ban keyword searches, a similarly criticized investigative tactic in which Google hands over data based on what someone searched for. to ensure that law enforcement across the country does not continue to abuse geofence warrants. . (May 31, 2020). Geofence warrants , or reverse-location warrants, are a fairly new concept. 1995 (2017). Lamb, supra note 5. .); United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring); see also Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). At step one, Google must search all of its location information, including the additional information it produces during the back-and-forth at step two. These warrants often do not lead to catching perpetrators2222. Minnesota,1515. Execs. Assn, 489 U.S. 602, 615 (1989). 1. iBox Service. R. Crim. Jake Laperruque, Project on Government Oversight, Torn between the latest phones? Brewster, supra note 14. (1763) 98 Eng. There is, additionally, the age-old critique that judges do not understand the technologies they confront. 2518(1)(c). R. Crim. The decision believed to be the first of its kind could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years, privacy . In Ohio, requests rose from seven to 400 in that same time. In other words, officer discretion must be cabined not fully eliminated. Similarly, geofence data could be used as evidence of guilt not just by being loosely associated with someone else in a crowd but by simply being there in the first place. See, e.g., In re Search of: Info. Google Amicus Brief, supra note 11, at 13. Usually, officers identify a suspect or person of interest, then obtain a warrant from a judge to search the persons home or belongings. Geofencing itself simply means drawing a virtual border around a predefined geographical area. In Ohio, requests rose from seven to 400 in that same time. << /Filter /FlateDecode /Length 4987 >> To allow officials to request this information without specifying it would grant them unbridled discretion to obtain data about particular users under the guise of seeking location data.175175. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. As a result, to better protect users data and to ensure uniformity of process, Google purports to always push back on overly broad requests6767. Instead, many warrant applications provide only the latitude and longitude of the search areas boundaries.5757. Thomas Brewster, Feds Order Google to Hand Over a Load of Innocent Americans Locations, Forbes (Oct. 23, 2018, 9:00 AM), https://www.forbes.com/sites/thomasbrewster/2018/10/23/feds-are-ordering-google-to-hand-over-a-load-of-innocent-peoples-locations [https://perma.cc/EH8L-59ZU]. 99, 12124 (1999). 2703(a), (b)(A), (c)(A). Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. courts have suggested as much,2929. Second, law enforcement reviews the anonymized list and identifies devices it is interested in.7171. It should be a last resort, because its so invasive.. Google Told Them, MPRnews (Feb. 7, 2019, 9:10 PM), https://www.mprnews.org/story/2019/02/07/google-location-police-search-warrants [https://perma.cc/Q2ML-RBHK] (describing a six-month nondisclosure order). are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. Elm, supra note 27, at 13; see also 18 U.S.C. The rise of geofence warrants in Virginia . [vi] In current practice, Google requires law enforcement to obtain a single search warrant. The amount of behind-the-scenes cooperation between Apple-Facebook-Google-et-al and law enforcement would boggle the . Google Amicus Brief, supra note 11, at 89. at 117. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). Their support is welcome, especially since weve been calling on companies like Google, which have a lot of resources and a lot of lawyers, to do more to resist these kinds of government requests. The fact that geofence results indicate only proximity to a crime, not whether someone broke the law or is even suspected of wrongdoing, has also alarmed legal scholars, who worry it could enable government searches of people without real justification. The online conversations that bring us closer together can help build a world thats more free, fair, and creative. The figures, published Thursday, reveal that Google has received thousands of geofence warrants each quarter since 2018, and at times accounted for about one-quarter of all U.S. warrants that . See Albert Fox Cahn, This Unsettling Practice Turns Your Phone into a Tracking Device for the Government, Fast Co. (Jan. 17, 2020), https://www.fastcompany.com/90452990/this-unsettling-practice-turns-your-phone-into-a-tracking-device-for-the-government [https://perma.cc/A4NR-ZRVQ]. In 2020, a warrant for users who had searched [for the victims address] close in time to the arson was granted, and Google responded by providing IP addresses of responsive users.185185. 531, 551 (2005) (emphasis added). These reverse warrants have serious implications for civil liberties. . Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. If law enforcement needed to establish only probable cause to search a private companys location history records, probable cause would always be satisfied with the same choice statistics121121. Courts have long been reluctant to forgive the requirements of the Fourth Amendment in the name of law enforcement,113113. on companies like Google, which have a lot of resources and a lot of lawyers, to do more to resist these kinds of government requests. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, C-Span, at 1:36:00 (July 29, 2020), https://www.c-span.org/video/?474236-1/heads-facebook-amazon-apple-google-testify-antitrust-law [https://perma.cc/3MFB-LNH5]. Geofence warrants that allow law enforcement to collect location data on mobile device users for criminal probes are under attack by civil rights groups and public defenders; they say the warrants . See Skinner v. Ry. See Webster, supra note 5 (describing multiple warrants issued within ten minutes of the request). Second, this list is often quite broad. In contrast, law enforcement in Arson explained why all the areas included in the geofence could potentially reveal evidence of witnesses or coconspirators. Google uses its stored location data to personalize advertisements, estimate traffic times, report on how busy restaurants are, and more. George Joseph & WNYC Staff, Manhattan DA Got Innocent Peoples Google Phone Data Through a Reverse Location Search Warrant, Gothamist (Aug. 13, 2019, 5:38 PM), https://gothamist.com/news/manhattan-da-got-innocent-peoples-google-phone-data-through-a-reverse-location-search-warrant [https://perma.cc/RH9K-4BJZ]. Id. .); Google Amicus Brief, supra note 11, at 14 (To produce a particular users CSLI, a cellular provider must search its records only for information concerning that particular users mobile device.). The greater the privacy interest, the more stringent the particularity requirement.159159. amend. Why this time? Raleigh Police Searched Google Accounts as Part of Downtown Fire Probe, WRAL.com (July 13, 2018, 2:07 PM), https://www.wral.com/scene-of-a-crime-raleigh-police-search-google-accounts-as-part-of-downtown-fire-probe/17340984 [https://perma.cc/8KDX-TCU5] (explaining that Google could not disclose its search for ninety days); Tony Webster, How Did the Police Know You Were Near a Crime Scene? at 57. In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. Steele, 267 U.S. at 503. Angela Lang/CNET. On the other hand, the government has an interest in finding incriminating evidence and preventing crime.132132. The Richmond police used personal data from Google Maps to crack a six-month-old bank robbery, triggering protests from the suspect's counsel that the use of what is known as a "geofence warrant . . Carpenter v. United States, 138 S. Ct. 2206, 221718 (2018); Riley v. California, 573 U.S. 373, 38586 (2014); see, e.g., Arson, No. Few offer information regarding the scope of the geographical area to be searched in a unit of measurement most people would understand, like blocks or street parameters. Wisconsin,2121. Ct. Rev. On the other hand, there is a strong argument that the third party doctrine which states that individuals have no reasonable expectations of privacy in information they voluntarily provide to third parties3535. Geofence warrants are popular. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. The avid biker would do loops around his Gainesville, Fla., neighborhood and track his rides with a fitness app on his Android phone. In Wong Sun v. United States,115115. Here, where the government compelled the initial search and directs the step two inquiry, it would be improper to describe the private company as anything other than an agent or instrument of the Government. Id.
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