OConnor, supra note 6. 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. Angela Lang/CNET. The Supreme Court has rejected efforts to expand the scope of this provision to embrace unenumerated matters. United States v. Grubbs, 547 U.S. 90, 97 (2006). 2. 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. Conclusion. 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. The location data typically comes from Google, who collects data from their Android phone . Individuals would have had to possess extremely keen eyesight and perhaps x-ray vision to have had any awareness of the crime at all.154154. at *5 n.6. The government must thus establish probable cause for the time146146. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. Geofence location and keyword warrants are new law enforcement tools that have privacy experts concerned. See id. (June 14, 2020, 8:44 PM), https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142 [https://perma.cc/WEE5-QRF2]. 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). When a geofence warrant is executed, courts should recognize that the search consists of two components: a search through (1) a private companys database for (2) data associated with a particular time and place. 20 M 297, 2020 WL 5491763, at *1, *3 (N.D. Ill. July 8, 2020). Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Riley, 573 U.S. at 385. 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. Geofence Warrants and Reverse Keyword Warrants are So Invasive, Even 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. R. Crim. Id. McCoy didn't think anything unusual had happened that day. Virginia,1919. Emily Glazer & Patience Haggin, Political Groups Track Protesters Cellphone Data, Wall St. J. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). Florida,1313. A sufficiently particular warrant must provide meaningful limitations on this lists length, leav[ing] the executing officer with [less] discretion as to what to seize.165165. for Just., Cellphones, Law Enforcement, and the Right to Privacy 5 (2018), https://www.brennancenter.org/sites/default/files/2019-08/Report_Cell_Surveillance_Privacy.pdf [https://perma.cc/Z6F7-XZYV]. 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 In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. 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]. Oops something is broken right now, please try again later. Complaint at 23, Rodriguez v. Google, No. Ctr. But geofence warrants take it a step farther, looking for suspects in the absence of leads, casting a wide net without clues, and pursuing a person they don't already suspect. Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. Texas,1818. We developed a process specifically for these requests that is designed to honor our legal obligations while narrowing the scope of data disclosed.". at *7. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. 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, e.g., Information Requests, Twitter (Jan. 11, 2021), https://transparency.twitter.com/en/reports/information-requests.html [https://perma.cc/8UCA-8VK5]; Law Enforcement Requests Report, Microsoft, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report [https://perma.cc/ET8L-TL9C]; Transparency Report: Government Requests for Data, Uber (Sept. 22, 2020), https://www.uber.com/us/en/about/reports/law-enforcement [https://perma.cc/M9J4-YKT6]. See United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring); see also State v. Brown, 202 A.3d 1003, 1012 n.8 (Conn. 2019); Commonwealth v. Estabrook, 38 N.E.3d 231, 237 (Mass. The best tool to defend that right in Email updates on news, actions, events in your area, and more. "Geofence Warrants Are the Future (and That's a Good Thing)" 19. Lamb, supra note 5. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. 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. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Alfred Ng, Geofence Warrants: How Police Can Use Protesters Phones Against Them, CNET (June 16, 2020, 9:52 AM), https://www.cnet.com/news/geofence-warrants-how-police-can-use-protesters-phones-against-them [https://perma.cc/3XEJ-L3KT]. 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. Geofencing Warrants - North Carolina Criminal Law Because it is rare to search an individual in the modern age. It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest, as happened in Kenosha, Wisconsin during a protest against police violence. Professor Orin Kerr has argued in favor of an exposure-based approach: [A] search occurs when information from or about the data is exposed to possible human observation. . While all geofence warrants provide a search radius and time period, they otherwise vary greatly. The bar on general warrants has been well established since even before the Founding. 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]. PDF Legal Process Guidelines - Apple Inc. As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. R. Crim. Google has reportedly received as many as 180 requests in a single week.2525. An Explosion in Geofence Warrants Threatens Privacy Across the US [News] Google reports increase in geofence warrants Government practice further suggests that the search begins when companies look through their entire databases. 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. Much has been said about how courts will extend Carpenter if at all.3939. The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. But they can do even more than support legislation in one state. Geofence warrants enable the government to conduct sweeping searches of cell phone location data for any phone that enters a predefined geographical boundary, or geofence, during limited time frames.2 The rising 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. Id. The Gainesville Police Department had gotten something called a geofence warrant granted by the Alachua County court. 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. Lab. 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]. and other states. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (Whether the Government employs its own surveillance technology . 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). << /Filter /FlateDecode /Length 4987 >> 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). In re Leopold to Unseal Certain Elec. Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. wiretaps,9898. GRAND RAPIDS, Mich. Geofence warrants are helping law enforcement agencies solve crimes using your cell phone's location data. Google Data and Geofence Warrant Process | nlsblog.org The Court found that the warrant at issue lacked particularized probable cause to search all . Probable cause for a van does not extend to a suitcase located within it,119119. See Products, Google, https://about.google/products [https://perma.cc/ZVM7-G9BX]. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. The Arson court first emphasized the small scope of the areas implicated. R. Crim. In others, police have targeted the wrong man, or retrieved data on more than 1,000 phones going through the area, raising concerns about how innocent people can be affected by such warrants. Until now, geofence warrants have largely gone uncontested by U.S. judges, with rare . 20 M 525, 2020 WL 6343084 (N.D. Ill. Oct. 29, 2020). Id. See, e.g., Search Warrant, supra note 5. In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. serves as a useful example, especially when juxtaposed with In re Search of: Information Stored at Premises Controlled by Google, as Further Described in Attachment A (Pharma I).151151. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Google Geofence Warrants Endanger PrivacyJudges Now See The Threat and balances two competing interests. Snapchat and Apple, too. At this time, fewer pedestrians would be around, and fewer individuals would be captured by the geofence warrant. According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020. Geofencing: What It Is and How It Works - Lifewire See Google Amicus Brief, supra note 11, at 14. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. The information comes in three phases. Judges do not consistently engage in the informed and deliberate decisionmaking that the Fourth Amendment contemplated. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. Geofence warrants work differently from typical search warrants. It turns out that these warrants are so invasive of user privacy that big tech companies like Google, Microsoft, and Yahoo are willing to support banning them. at 552. 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. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. Berger, 388 U.S. at 57. Carpenter, 138 S. Ct. at 221920. Although the Court in Carpenter recognized the eroding divide between public and private information, it maintained that its decision was narrow and refused to abandon the third party doctrine.3838. Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. Search Warrant, supra note 5. Particularly describing the former is straightforward. (June 12, 2019), https://www.pewresearch.org/internet/fact-sheet/mobile [https://perma.cc/7WWT-NLPP]. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . Ninety-six percent of Americans own cell phones. and cell-site simulators,100100. While the government may argue that officer discretion remains cabined at this step because it requests additional information about only a narrowed list of individuals, there are two flaws with this response. 18-mj-00169 (W.D. Lab. Geofence Warrants On The Rise - Logically Now, a group of researchers has learned to decode those coordinates. Google provides the more specific informationlike an email address or the name of the account holderfor the users on the narrower list. Id. While traditional court orders permit searches related to known suspects, geofence warrants are issued specifically because a suspect cannot be identified.1010. Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. 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. Do Geofence Warrants Violate the Fourth Amendment? - Lawfare 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. Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). Google uses its stored location data to personalize advertisements, estimate traffic times, report on how busy restaurants are, and more. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. Zack Whittaker, Minneapolis Police Tapped Google to Identify George Floyd Protesters, TechCrunch (Feb. 6, 2021, 11:00 AM), https://techcrunch.com/2021/02/06/minneapolis-protests-geofence-warrant [https://perma.cc/9ACT-G98Q]. 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. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to . The . It ensures that the search will be carefully tailored to its justifications126126. 636(a)(1); Fed. The greater the privacy interest, the more stringent the particularity requirement.159159. 27 27. 2018); United States v. Saemisch, 371 F. Supp. . See, e.g., Application for Search Warrant (Minn. Hennepin Cnty. 279, 33940 (2004); Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. See Carpenter v. United States, 138 S. Ct. 2206, 2211, 2217 (2018). Id. . For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. Some, for example, will expand the search area by asking for devices located outside the search parameters but within a margin of error.6464. 793Stop All Digital Last week, the New York Attorney General secured a $410,000 fine from Patrick Hinchy and 16 companies that he runs which produce and sell spyware and stalkerware. No. 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8, 2020). Maine,1414. 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. EFF proudly joins ACLU California Action and If/When/How to co-sponsor new California legislation to protect people seeking abortion and gender-affirming care from dragnet-style digital surveillance. A warrant that authorized one limited intrusion rather than a series or a continuous surveillance thus could not be used as a passkey to further search.8787. and the Supreme Court has maintained that warrants are generally preferred.3030. This secrecy prevents the public from knowing how judges consider these warrants and whether courts have been consistent, increasing the need for not only transparency but also uniformity in applying the Fourth Amendment to geofence warrants. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . What is a geofence warrant? | Kopp Law - FindLaw IM Template The number of geofence warrants police submitted to Google has risen dramatically. 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]. . 3 0 obj The geofence warrants served on Google shortly after the riot remained sealed. Between 2017 and 2018, the number of geofence warrants issued to Google increased by more than 1,500%; between 2018 and 2019, over another 500%.2424. Google Geofence Data Identified 5,723 Devices Near January 6th US Time period should be treated analogously to geographic parameters for purposes of probable cause. As courts are just beginning to grapple seriously with how the Fourth Amendment extends to geofence warrants, the government has nearly perfected its use of these warrants and has already expanded to its analogue: keyword search history warrants. Location data is inextricably tied to the freedoms of speech and association. 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. The Places Searched. Sess. See Valentino-DeVries, supra note 25. 18-5276)). for example, an English court struck down a warrant that allowed officials to apprehend[] the authors, printers, and publishers of a publication critical of the government9393. .); 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). KRWEa7JC^z-kPdhr_ 3J*d 0G -p2K@u&>BXQ?K2`-P^S J:9EU(2U80A#[P`##A-7P=;4|) J(D/UJK`%h(X!v`_}#Y^SL`D( :BPH:0@K?> Z4^'GdA@`D.ezE|k27T G+ev!uE5@GSIL+$O5VBEUD 2t%BZfJzt:cYM:Tid3t$ Berger, 388 U.S. at 56 ([T]he indiscriminate use of such devices in law enforcement[] . Critics noted that such a bill could penalize anyone attending peaceful demonstrations that, because of someone elses actions, become violent. Enter a serial number to review your eligibility for support and extended coverage. Id. As a result, to better protect users data and to ensure uniformity of process, Google purports to always push back on overly broad requests6767. Law Prof Suggests Geofence Warrants Are A Net Gain For The Public, Even Geo-fence warrant - Wikipedia 27012712; Elm, supra note 27, at 9. its text merely requires a warrant issued using the procedures described in the Federal Rules of Criminal Procedure. Geofencing with iPhone - Apple Community When law enforcement wants information associated with a particular location, rather than a particular user, it can request tower dumps download[s] of information on all the devices that connected to a particular cell site during a particular interval. Carpenter, 138 S. Ct. at 2220; see also United States v. Adkinson, 916 F.3d 605, 608 (7th Cir. The warrant was thus sufficiently particular. The conversation has started and must continue in Congress.183183. 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. at *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. Google Amicus Brief, supra note 11, at 89. Illinois v. Gates, 462 U.S. 213, 232 (1983); see also Florida v. Harris, 568 U.S. 237, 244 (2013); Maryland v. Pringle, 540 U.S. 366, 371 (2003). See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. 20-cv-4688 (N.D. Cal. Cf. 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 . Emblematic of general warrants, these warrants should be highly suspect per se. 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. PDF Digital Dragnets: How the Fourth Amendment Should Be Interpreted and Id. Through the use of geofence warrants (also known as reverse location warrants), federal and state law enforcement officers are routinely requesting that Google search users' accounts to determine who was in a certain geographic area at a particular timeand then to track individuals outside of that initially specific area and time period. In order for step twos back-and-forth to be lawful, therefore, the geofence warrant must have authorized these further searches. Transparency is important in understanding the scale of the risks to privacy, but there are still no clear ways to limit the use of these tools nationwide.
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