Complaint at 23, Rodriguez v. Google, No. Yet there is little to suggest that courts will hold geofence warrants categorically unconstitutional any time soon, despite the Courts recognition that intrusive technologies should trigger higher judicial scrutiny.177177. Thomas Brewster, Google Hands Feds 1,500 Phone Locations in Unprecedented Geofence Search, Forbes (Dec. 11, 2019, 7:45 AM), https://www.forbes.com/sites/thomasbrewster/2019/12/11/google-gives-feds-1500-leads-to-arsonist-smartphones-in-unprecedented-geofence-search [https://perma.cc/PML8-W2UR]. In response, law enforcement may argue that it has historically been allowed to examine[] [papers], at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976); see also United States v. Evers, 669 F.3d 645, 652 (6th Cir. Stored at Premises Controlled by Google (Pharma II), No. at 117. 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. 19-cr-00130 (E.D. Id. The warrant must still be sufficiently particular relative to its objective: finding accounts whose location data connects them to the crime. Pharma II, No. Geofence warrants are a relatively new but rapidly expanding phenomenon. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. In the past, the greatest protections of privacy were neither constitutional nor statutory, but practical.176176. 2006). at 480. to find evidence whether by chance or other means.118118. Access to the storehouse by law enforcement continues to generate controversy because these warrants vacuum the location . This rummaging and the general [a]wareness that the government may be watching chills associational and expressive freedoms.106106. Although these warrants have been used since 2016 26 26. Google hit with more than 20,000 geofence warrants from 2018 to 2020 Thus far, however, these warrants have been involved in solving robbery, burglary, and murder cases. Second, [t]he fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Skinner v. Ry. Geofencing: What It Is and How It Works - Lifewire for Just., Cellphones, Law Enforcement, and the Right to Privacy, https://www.nbcnews.com/news/us-news/google-tracked-his-bike-ride-past-burglarized-home-made-him-n1151761, https://int.nyt.com/data/documenthelper/764-fdlelocationsearch/d448fe5dbad9f5720cd3/optimized/full.pdf, https://www.wral.com/scene-of-a-crime-raleigh-police-search-google-accounts-as-part-of-downtown-fire-probe/17340984, https://www.mprnews.org/story/2019/02/07/google-location-police-search-warrants, https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374, https://www.cnet.com/news/geofence-warrants-how-police-can-use-protesters-phones-against-them, https://www.wired.com/story/creepy-geofence-finds-anyone-near-crime-scene, https://www.forbes.com/sites/thomasbrewster/2018/10/23/feds-are-ordering-google-to-hand-over-a-load-of-innocent-peoples-locations, https://gothamist.com/news/manhattan-da-got-innocent-peoples-google-phone-data-through-a-reverse-location-search-warrant, https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html, https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi, https://www.thedailybeast.com/manhattan-da-cy-vance-made-google-give-up-info-on-everyone-in-area-in-hunt-for-antifa-after-proud-boys-fight, https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html, https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb, https://policies.google.com/terms/information-requests, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257, https://transparency.twitter.com/en/reports/information-requests.html, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report, https://www.uber.com/us/en/about/reports/law-enforcement, https://transparencyreport.google.com/user-data/overview, https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us, https://www.idc.com/promo/smartphone-market-share/os, https://themanifest.com/mobile-apps/popularity-google-maps-trends-navigation-apps-2018, https://www.fastcompany.com/90452990/this-unsettling-practice-turns-your-phone-into-a-tracking-device-for-the-government, https://www.washingtonpost.com/technology/2019/11/21/bank-robber-accuses-police-illegally-using-google-location-data-catch-him, https://www.forbes.com/sites/thomasbrewster/2019/12/11/google-gives-feds-1500-leads-to-arsonist-smartphones-in-unprecedented-geofence-search, https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142, https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-brutality-protests-government, https://techcrunch.com/2021/02/06/minneapolis-protests-geofence-warrant, https://appleinsider.com/articles/18/03/19/police-are-casting-a-wide-net-into-the-deep-pool-of-google-user-location-data-to-solve-crimes, https://www.pewresearch.org/internet/fact-sheet/mobile, https://www.documentcloud.org/documents/3519211-Edina-Police-Google-Search-Warrant-Redacted.html, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf, https://www.c-span.org/video/?474236-1/heads-facebook-amazon-apple-google-testify-antitrust-law, https://www.brennancenter.org/sites/default/files/2019-08/Report_Cell_Surveillance_Privacy.pdf, https://www.cnet.com/news/google-is-giving-data-to-police-based-on-search-keywords-court-docs-show. 'Geofence warrant' unconstitutional, judge rules in Virginia - Police1 See Groh v. Ramirez, 540 U.S. 551, 560 (2004); see also Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. Going to cell phone providers is a bit tricky, thanks to the Supreme Cou Apple and Facebook remained resolute in their vow not to build back doors into their products for law enforcement to potentially view the private communications of . . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. Law enforcement gets a warrant from a judge, then serves it to Google or Apple. Another covered solely a small L-shaped roadway,168168. New York,1616. We developed a process specifically for these requests that is designed to honor our legal obligations while narrowing the scope of data disclosed.". But months later, in January of this year, McCoy got an email from Google saying that his data was going to be released to local police. Instead, with geofence warrants, they draw a box on a map, and compel the company to identify every digital device within that drawn boundary during a given time period. Google is the most common recipient and the only one known to respond.4747. 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). Law Prof Suggests Geofence Warrants Are A Net Gain For The Public, Even The three tech giants have issued a. ,'' that they will support a bill before the New York State legislature. Brewster, supra note 14. Garrison, 480 U.S. at 84 (quoting United States v. Ross, 456 U.S. 798, 824 (1982)); see also Pharma I, No. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . 'A uniquely dangerous tool': How Google's data can help - POLITICO 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. See Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. even if probable cause requirements are relaxed in the electronic context,148148. S8183, 20192020 Leg. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. 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 *1. MetLife, Inc. v. Fin. L. Rev. See, e.g., Klayman v. Obama, 957 F. Supp. Apple, Uber, and Snapchat have . Wilkes, 98 Eng. Facebook has also publicly denounced the use of geofence warrants, with a spokesperson outwardly supporting the bill. Thus, a "geofence warrant" provides the government the ability to obtain location data for a Google user for a particular area and, eventually, subscriber information for the account holder using . Carpenter, 138 S. Ct. at 2218. checking the whereabouts of millions of innocent people across the globe just to rule them in as suspects, without producing any evidence about which people, if any, were anywhere near the crime scene. ACLU, Public Defenders Push Back Against Google Giving Police Your Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. Just this week, Kenosha lawmakers debated a bill that would make attending a riot a felony. And, as EFF has argued in amicus briefs, it violates the Fourth Amendment because it results in an overbroad fishing-expedition against unspecified targets, the majority of whom have no connection to any crime. It would seem inconsistent, therefore, to argue that there is a high probability that perpetrators do not have their phones. For a discussion of the Carpenter Courts treatment of the third party doctrine, see Laura K. Donohue, Functional Equivalence and Residual Rights Post-Carpenter: Framing a Test Consistent with Precedent and Original Meaning, 2018 Sup. A geofence warrant is a warrant that goes to any company capable of tracking your location data through your cellphone. In fact, it is more precise than either CSLI or GPS.3434. The fact that geofence warrants capture the data of innocent people is not, by itself, a problem for Fourth Amendment purposes since many technologies such as security cameras do the same. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Berger, 388 U.S. at 57. 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. Typically, a geofence warrant calls on Google to access its database of location information. Ctr. Some have suggested that geofence warrants should be treated like wiretaps. See Products, Google, https://about.google/products [https://perma.cc/ZVM7-G9BX]. Each one of these orders could sweep in hundreds or . Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. 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. The Warrant included the following photograph of the area with the geofence superimposed over it: The Warrant sought location data for every device present within the geofence from 4:20 p.m. to 5:20 p.m. on the day of the robbery. . Congress must engage in proactive legislation as it has done with other technologies181181. See Deanna Paul, Alleged Bank Robber Accuses Police of Illegally Using Google Location Data to Catch Him, Wash. Post (Nov. 21, 2019, 8:09 PM), https://www.washingtonpost.com/technology/2019/11/21/bank-robber-accuses-police-illegally-using-google-location-data-catch-him [https://perma.cc/A9RT-PMUQ]. Angela Lang/CNET. Part III explains that if courts instead adopt a narrow definition of searches, such that only the accounts that fall within the terms of a warrant are considered searched, law enforcement must satisfy the Fourth Amendments probable cause and particularity requirements by establishing that evidence of a crime is likely to be found in a companys location history records associated with a specific time and place and providing specific descriptions of the places searched and things seized. A traditional search warrant for a car or a house or a laptop typically targets a specific person police have probable cause to suspect of a crime. . 1995 (2017). (Steve Helber/AP) At 4:52 p.m. on May 20, 2019, a man walked into Call Federal . PLGB9hJKZ]Xij{5
'mGIP(/h(&!Vy|[YUd9_FcLAPQG{9op
QhW) 6@Ap&QF]7>B3?T5EeYmEc9(mHt[eg\ruwqIidJ?"KADwf7}BG&1f87B(6Or/5_RPcQY o/YSR0210H!mE>N@KM=Pl 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. See, e.g., Search Warrant, supra note 5. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Steele, 267 U.S. at 503. Zachary McCoy went for a bike ride on a Friday in March 2019. Ryan Nakashima, AP Exclusive: Google Tracks Your Movements, Like It or Not, AP News (Aug. 13, 2018), https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb [https://perma.cc/2UUM-PBV6]. The rise of geofence warrants in Virginia . United States v. Jacobsen, 466 U.S. 109, 113 (1984). at *5 n.6. New Resources Available for Password Manager Apps. Without additional warrants, officials are given leeway to expand searches beyond the time and geographic scope of the original request8383. They also vary in the evidence that they request. The government must thus establish probable cause for the time146146. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of Sensorvault.7979. What is a geofence warrant? | Kopp Law - FindLaw IM Template With permission from a judge, they allow law enforcement to obtain anonymized data from Google from almost any device that was in a certain geographic . The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. Since then, it has generally been understood that no warrant can authorize the search of everything or everyone in sight.9696. Location History Records. 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. Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. at 614. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. An Explosion in Geofence Warrants Threatens Privacy Across the US Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. That is because Apple doesn't store location data in a format . The geofence warrants served on Google shortly after the riot remained sealed. If you have a warrant you need, or a template you feel would be good to add please email shortb@jccal.org. No. WIRED is where tomorrow is realized. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. A geo-fence warrant (also known as a geofence warrant or a reverse location warrant) is a search warrant issued by a court to allow law enforcement to search a database to find all active mobile devices within a particular geo-fence area. amend. Riley v. California, 573 U.S. 373, 385 (2014). 2018); United States v. Diggs, 385 F. Supp. Rep. 807 (KB); and Money v. Leach (1765) 97 Eng. . 1848 (codified as amended in scattered sections of 18 U.S.C.). 775, 84245 (2020). 2016). In Pharma I, the requested geofence spanned a 100-meter radius area within a densely populated city during several times in the early afternoon, capturing a large number of individuals visiting all sorts of amenities associated with upscale urban living.152152. As a result, and because Google has recently revealed how it processes these warrants, this Note discusses Google in particular detail, though it functions as a stand-in for any company that collects and stores location data. 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. Cf. . See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. Google Amicus Brief, supra note 11, at 13. 347, 37388. See, e.g., Steele v. United States, 267 U.S. 498, 50405 (1925) (concluding, despite the fact that the cases of whiskey seized may not have been the exact cases that officials saw being delivered and that served as the basis of the warrant, that particularity was satisfied). See id. See, e.g., Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). 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]. Va. June 14, 2019). and raise interesting and novel Fourth Amendment questions, they have rarely been studied. Geofence warrants: What they are and why they're controversial As consumers turn over ever-increasing information to third parties as part of engaging in daily life, there have been vigorous criticisms of the doctrine as out of touch with the modern era and calls to amend it or even abolish it entirely. See Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018) (Wireless carriers collect and store CSLI for their own business purposes. it relies in large part on police expertise and intuition134134. Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. Federal public defender Donna Lee Elm has proposed the enactment of a geofence-specific statute that parallels the Federal Wiretap Act, 18 U.S.C. The Things Seized. L. No. In fact, it is this very pervasiveness that has led the Court to hold that searching a cell phone and obtaining CSLI are searches.145145. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. Particularity was constitutionalized in response to these reviled general warrants.9595. Servers Controlled by Google, Inc., No. In re Leopold to Unseal Certain Elec. at *7. ) 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020) (rejecting the governments argument that Googles framework curtail[s] or define[s] the agents discretion in a[] meaningful way); see also Arson, 2020 WL 6343084, at *10; Pharma II, No. Just this week, Forbes revealed that Google granted police in Kenosha, Wisconsin, access to user data from bystanders who were near a library and a museum that was set on fire last August, during the protests that followed the murder of George Floyd. Thus, the conclusion that a geofence warrant involves a search of location data within certain geographic and temporal parameters, rather than a general search through a companys database, should be the beginning, not the end, of the analysis.129129. 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 Reverse Location Search Prohibition Act, A. See Google Amicus Brief, supra note 11, at 5. including Calendar, Chrome, Drive, Gmail, Maps, and YouTube, among others.4545. wiretaps,9898. See Google Amicus Brief, supra note 11, at 1314. Modern technology, in removing most practical barriers to surveillance, has ensured that this statement no longer holds. The bar on general warrants has been well established since even before the Founding. 20 M 525, 2020 WL 6343084 (N.D. Ill. Oct. 29, 2020). [T]he liberty of every [person] would be placed in the hands of every petty officer.9090. Lamb, supra note 5. Here's another rejection covered by Techdirt this one arriving nearly a year ago . 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. Jake Laperruque, Project on Government Oversight, Torn between the latest phones? All rights reserved. The warrant was thus sufficiently particular. Selain di Jogja City Mall lantai UG Unit 38, iBox juga kini sudah hadir di Hartono Mall. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. (N.Y. 2020). at 48081. See Brief of Amicus Curiae Google LLC in Support of Neither Party Concerning Defendants Motion to Suppress Evidence from a Geofence General Warrant at 1112, United States v. Chatrie, No. . Id. nor provide the exact location being searched.161161. The Arson court first emphasized the small scope of the areas implicated. Russell Brandom, Feds Ordered Google Location Dragnet to Solve Wisconsin Bank Robbery, The Verge (Aug. 28, 2019, 4:34 PM), https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi [https://perma.cc/JK5D-DEXM]. R. Crim. The new orders, sometimes called "geofence" warrants, specify an area and a time period, and Google gathers information from Sensorvault about the devices that were there. . Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. While some explain this practice by pointing to the Stored Communications Act,5959. But they can do even more than support legislation in one state. Google Amicus Brief, supra note 11, at 12. all of which at least require law enforcement to identify a specific suspect or target device. 2013), vacated, 800 F.3d 559 (D.C. Cir. Just., Summer 2020, at 7. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". The difference between a tower dump and step one of Googles framework is obvious: the tower dump involves only data tied to the cell towers location, while Google searches all of its location data even though none of it may be within the parameters of a geofence warrant. When probable cause to search a garage does not even extend to a bedroom in the same house,147147. See Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). Google Amicus Brief, supra note 11, at 3. It is clear that technology will only continue to evolve. July 14, 2020). In California, geofence warrant requests leaped from 209 in 2018 to more than 1,900 two years later. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. 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). Geofence warrants, which compel Google to provide a list of devices whose location histories indicate they were near a crime scene, are used thousands of times a year by American law enforcement . Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13.