In the statement released by the companies, they write that, This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term. This is an undoubtedly positive step for companies that have a checkered history of being cavalier with users' data and enabling large-scale government surveillance. Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. . The three stage warrant process is based on an agreement between Google and the Department of Justice's Computer Crime and Intellectual . But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to . Courts have already shown great concern over technologies such as physical tracking devices,9797. 1996)). If as is common practice, see, e.g., Affidavit for Search Warrant, supra note 65, at 23 officials had requested additional location data as part of step two for these 1,494 devices thirty minutes before and after the initial search, this subsequent search would be broader than many geofence warrants judges have struck down as too probing, see, e.g., Pharma II, No. Google received 982 geofence warrants in 2018, 8,396 a year later, and 11,554 in 2020, according to the latest data released by the company. See id. Until now, geofence warrants have largely gone uncontested by U.S. judges, with rare . at *5 n.6. The government must thus establish probable cause for the time146146. While some explain this practice by pointing to the Stored Communications Act,5959. Map: Klik Disini. Ct. Rev. But in a dense city, even a relatively narrow geofence warrant would inevitably capture innocent citizens visiting not only busy public streets and commercial establishments, but also gyms, medical offices, and religious sites, revealing, by easy inference, political and religious associations, sexual orientation, and more.123123. These searches, which occur [w]ith just the click of a button and at practically no expense,102102. 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. See Google Amicus Brief, supra note 11, at 1314. Geofence warrants work differently from typical search warrants. Google Amicus Brief, supra note 11, at 89. at *5. See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). Android controls around eighty-five percent of the global smartphone market. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . Access to the storehouse by law enforcement continues to generate controversy because these warrants vacuum the location . . Harris, 568 U.S. at 244; Pringle, 540 U.S. at 371. A geofence warrant is a warrant that goes to any company capable of tracking your location data through your cellphone. Riley Panko, The Popularity of Google Maps: Trends in Navigation Apps in 2018, The Manifest (July 10, 2018), https://themanifest.com/mobile-apps/popularity-google-maps-trends-navigation-apps-2018 [https://perma.cc/K2HT-3RVP]. In cases involving digital evidence stored with a tech company, this typically involves sending the warrant to the company and demanding they turn over the suspects digital data. Id. The bill would also ban keyword searches, a similarly criticized investigative tactic in which Google hands over data based on what someone searched for. On the other hand, the government has an interest in finding incriminating evidence and preventing crime.132132. After judicial approval, a geofence warrant is issued to a private company. Minnesota,1515. Chrome is not limited to mobile devices running the Android operating system and can also be installed and used on Apple devices. Across all 50 states, geofence requests to Google increased from 941 in 2018 to 11,033 in 2020 and now make up more than 25 percent of all data requests the company receives from law enforcement. Geofence warrants are requested by law enforcement and signed by a judge to order companies like Google, Microsoft and Yahoo, which collect and store billions of location data points from its . Johnson, 333 U.S. at 14; see also McDonald v. United States, 335 U.S. 451, 456 (1948) (Power is a heady thing; and history shows that the police acting on their own cannot be trusted.); Lefkowitz, 285 U.S. at 464 (preferring not to rel[y] upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime). Similarly, with a keyword warrant, police compel the company to hand over the identities of anyone who may have searched for a specific term, such as a victims name or a particular address where a crime has occurred. It ensures that the search will be carefully tailored to its justifications126126. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). But they can do even more than support legislation in one state. Redding, 557 U.S. at 370; see also Harris, 568 U.S. at 243; Ornelas v. United States, 517 U.S. 690, 696 (1996); Brown, 460 U.S. at 742 (plurality opinion); Brinegar, 338 U.S. at 17576. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. But California's OpenJustice dataset, where law enforcement agencies are required by state law to disclose executed geofence warrants or requests for geofence information, tells a completely different story.. A Markup review of the state's data between 2018 and 2020 found only 41 warrants that could clearly constitute a geofence warrant. It is the essential source of information and ideas that make sense of a world in constant transformation. See 28 U.S.C. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . The best tool to defend that right in Email updates on news, actions, events in your area, and more. Similarly, with a. , police compel the company to hand over the identities of anyone who may have searched for a specific term, such as a victims name or a particular address where a crime has occurred. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. See, e.g., Affidavit for Search Warrant, supra note 65, at 23. Police around the country have drastically increased their use of geofence warrants, a widely criticized investigative technique that collects data from any user's device that was in a specified area within a certain time range, according to new figures shared by Google. The Act does not mention sealing, and the government has conceded there are no default sealing or nondisclosure provisions.6161. and geographic area delineated by the geofence warrant. Snapchat and Apple, too. See, e.g., In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson), No. Every DJI quadcopter broadcasts its operator's position via radiounencrypted. 347, 37388. IV (emphasis added); see also Fed. .); 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.). at *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. Geofencing itself simply means drawing a virtual border around a predefined geographical area. Meg OConnor, Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder, Phx. While it is true that not everybody constantly carries their cell phone, and a cell phone is not always sending location information to Google,143143. The rise of geofence warrants in Virginia . Eighty-one percent have smartphones. at 480. to find evidence whether by chance or other means.118118. The Places Searched. 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 . In contrast, officers are engaged in the often competitive enterprise of ferreting out crime.5353. For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. See Valentino-DeVries, supra note 25. . 371 U.S. 471 (1963). Jason Leopold & Anthony Cormier, The DEA Has Been Given Permission to Investigate People Protesting George Floyds Death, BuzzFeed News (June 3, 2020, 6:28 PM), https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-brutality-protests-government [https://perma.cc/JM8U-BE4U]. If a geofence warrant constitutes a search, two places are searched: (1) the companys location history records and (2) the geographic area and temporal scope delineated by the warrant. To revist this article, visit My Profile, then View saved stories. Brewster, supra note 82. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. Going to cell phone providers is a bit tricky, thanks to the Supreme Cou [vi] In current practice, Google requires law enforcement to obtain a single search warrant. Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies digital toolbox. Maryland v. Garrison, 480 U.S. 79, 84 (1987). 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). All rights reserved. . Id. United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). Id. See Illinois v. Gates, 462 U.S. 213, 238 (1983). While geofence warrants are a fairly new tactic, surveillance of Black activists is not. Clayton Rice, K.C. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. See Berger v. New York, 388 U.S. 41, 5153 (1967). They sometimes approve warrants in a few minutes5555. Cf. United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Riley v. California, 573 U.S. 373, 403 (2014) (internal quotation marks omitted); see also Marshall v. Barlows, Inc., 436 U.S. 307, 311 (1978) (describing historical opposition to general warrants); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); Stanford, 379 U.S. at 48184. Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. On the Android, it's simply called "Location". 99-508, 100 Stat. During the protests in response to the murder of George Floyd, for example, companies collected and sold protesters phone data to political groups for election-related use,107107. Id. 2015) (emphasizing, albeit in a different context, that society often refuses to change and even perpetuates inherently unbalanced social structures and yet blames those disadvantaged for not being able to keep up). Under the Fourth Amendment, if police can demonstrate probable cause that searching a particular person or place will reveal evidence of a crime, they can obtain a warrant from a court authorizing a limited search for this evidence. This understanding is consistent only with treating step one as the search.8888. Finds Contact Between Proud Boys Member and Trump Associate Before Riot, N.Y. Times (Mar. ; Products, supra. First, because it has no way of knowing which accounts will produce responsive data, Google searches the entirety of Sensorvault, its location history database,6969. The conversation has started and must continue in Congress.183183. The trick is knowing which thing to disable. See, e.g., Susan Freiwald & Stephen Wm. See Google Amicus Brief, supra note 11, at 5. including Calendar, Chrome, Drive, Gmail, Maps, and YouTube, among others.4545. Judicial involvement in the warrant process has long been justified on the basis that judges are neutral and detached5151. without maps to visualize the expansiveness of the requested search or a list of hospitals, houses, churches, and other locations with heightened privacy interests incidentally included in the targeted area. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. Cops have discovered Google houses plenty of location data. Law enforcement has increasingly relied on technology companies to provide information about individual suspects to aid their investigations, sometimes voluntarily but most often in response to court orders.4040. OConnor, supra note 6. In other words, because probable cause ensures that any intrusion on privacy is justified by necessity, it considers whether there is a probability that evidence of illegal activity will be found in a specific area.149149. Brinegar, 338 U.S. at 176; see also Heien v. North Carolina, 574 U.S. 54, 60 (2014) (To be reasonable is not to be perfect . This Part argues that the relevant search for Fourth Amendment purposes occurs instead when a private company first searches through its entire database step one in Googles framework and that, as a result, geofence warrants are categorically unconstitutional.