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Execs. Assn, 489 U.S. 602, 615 (1989). ; Products, supra. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. But to the extent that law enforcement has discretion, that leeway exists only after it is provided with a narrowed list of accounts step two in Googles framework. 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. All rights reserved. See Google Amicus Brief, supra note 11, at 1314. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). . 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]. 2006). (Steve Helber/AP) At 4:52 p.m. on May 20, 2019, a man walked into Call Federal . See Jon Schuppe, Google Tracked His Bike Ride Past a Burglarized Home. . The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. The New York bill is still far from passage and impacts just one state. Valentino-DeVries, supra note 42. to produce an anonymized list of the accounts along with relevant coordinate, timestamp, and source information present during the specified timeframe in one or more areas delineated by law enforcement.7070. between midnight and 3:00 a.m.), which further limited the warrants scope.171171. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. 2010); United States v. Reed, 195 F. Appx 815, 822 (10th Cir. 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]. People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009), quoted in United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring). at 221718; Jones, 565 U.S. at 429 (Alito, J., concurring); id. Check your Apple warranty status. In contrast, officers are engaged in the often competitive enterprise of ferreting out crime.5353. 527, 56263, 57980 (2017). After producing a narrowed list of accounts in response to a warrant, companies often engage in a back-and-forth with law enforcement, where officials requestadditional location information about specific devices from before or after the requested timeframe to narrow the list of suspects.8282. 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 . Few are as fortunate as McCoy, who at least was informed and had the opportunity to block the request in court. For more applicable recommendations, see Rachel Levinson-Waldman, Brennan Ctr. 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. 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. They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. 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). Maryland v. Garrison, 480 U.S. 79, 84 (1987). That is because Apple doesn't store location data in a format . The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." 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. id. . The Act does not mention sealing, and the government has conceded there are no default sealing or nondisclosure provisions.6161. While there was likely probable cause to search the businesses where pharmaceuticals were stolen, this probable cause did not extend to other units of the building or neighboring areas.153153. Ng, supra note 9. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. 18-5276)). March 15, 2022. Additionally, geofence warrants are usually sealed by judges.5858. Law enforcement . 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. Geofence warrants rely on the vast trove of location data that Google collects4242. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. P. 41(b). See Google Amicus Brief, supra note 11, at 14. Additionally, courts have largely recognized the ubiquity of cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.144144. 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). 18-mj-00169 (W.D. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. . at 13. Berger v. New York, 388 U.S. 41, 62 (1967); see also Lopez v. United States, 373 U.S. 427, 464 (1963) (Brennan, J., dissenting). One such feature is Apple's proposed child sexual abuse material detection (CSAM . S. ODea, Number of Android Smartphone Users in the United States from 2014 to 2021, Statista (Mar. Id. . It may also include addresses, phone numbers, birth dates, social security numbers, payment information, and IP addresses, among other information.174174. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. Id. f]}~\zIfys/\ 3p"wk)_$r#y'a-U Stanford v. Texas, 379 U.S. 476, 481 (1965). On the one hand, the Court has recognized that, in certain circumstances, individuals have reasonable expectations of privacy in their location information.3131. Much has been said about how courts will extend Carpenter if at all.3939. See Valentino-DeVries, supra note 25. 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]. 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. Geofence location and keyword warrants are new law enforcement tools that have privacy experts concerned. agent[s] of the government not only when they produce the final list of names to law enforcement but also when they search their entire databases in order to produce these names.8181. Camara v. Mun. 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. Carpenter, 138 S. Ct. at 2218. Emily Glazer & Patience Haggin, Political Groups Track Protesters Cellphone Data, Wall St. J. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Jeffrey S. Sutton, 51 Imperfect Solutions, The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Rachel Levinson-Waldman, Brennan Ctr. 531, 551 (2005) (emphasis added). The geofence is . McCoy didn't think anything unusual had happened that day. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. Safford Unified Sch. Indeed, users proactively enable location tracking,3636. Sess. Brewster, supra note 82. 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 . The overwhelming majority of the warrants were issued by courts to state and local law enforcement. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . Because it is rare to search an individual in the modern age. This Note presumes that geofence warrants are Fourth Amendment searches. See Skinner v. Ry. 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. Global Nav Open Menu Global Nav Close Menu 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]. Speaking to WIRED last year, Quart called the tools a fishing expedition that violates people's basic constitutional rights., But regulation can only move so fast. (N.Y. 2020). See Products, Google, https://about.google/products [https://perma.cc/ZVM7-G9BX]. The Reverse Location Search Prohibition Act, A. 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. Why is this size of area necessary? Arson, No. Probable cause ensures that no intrusion at all is justified without a careful prior determination of necessity130130. Maryland v. Garrison, 480 U.S. 79, 84 (1987). The amount of behind-the-scenes cooperation between Apple-Facebook-Google-et-al and law enforcement would boggle the . 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. But a warrant does not need to describe the exact item being seized,160160. (Who Defends Your Data?) Third and finally, the nature of the crime of arson in comparison to the theft and resale of pharmaceuticals was more susceptible to notice from passerby witnesses.157157. The avid biker would do loops around his Gainesville, Fla., neighborhood and track his rides with a fitness app on his Android phone. Why wouldn't just one individuals phone work? he says. MetLife, Inc. v. Fin. 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]. Id. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. It ensures that the search will be carefully tailored to its justifications126126. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. Rep. 489 (KB). 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. There has been a dramatic increase in the use of geofence warrants by law enforcement in the U.S. Across all 50 states, geofence requests to Google increased from 941 in 2018 to 11,033 in 2020, accounting for a significant portion of all requests the company receives from law enforcement. In fact, it is more precise than either CSLI or GPS.3434. In a legal brief, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. %PDF-1.3 In contrast, law enforcement in Arson explained why all the areas included in the geofence could potentially reveal evidence of witnesses or coconspirators. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). merely by asking private companies. See, e.g., Susan Freiwald & Stephen Wm. 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. 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. IV. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. 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. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Yet Google often responds despite not being required to by a court.7575. Potentially, Apple iPhones can report data to Sensorvault under the right conditions. McCoy received notice from Google that he had seven days to go to court or risk the release of information related to his Google account and use of Google products to law enforcement.33. The warrant itself must be particular when presented to a judge for review163163. Part II begins with the threshold question of when a geofence search occurs and argues that it is when private companies parse through their entire location history databases to find accounts that fit within a warrants parameters. 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. These searches, which occur [w]ith just the click of a button and at practically no expense,102102. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . 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. Lower courts have disagreed over whether Carpenter was a narrow decision, see, e.g., United States v. Contreras, 905 F.3d 853, 857 (5th Cir. and with geofence warrants, there is often barely a law enforcement rationale. Access to the storehouse by law enforcement continues to generate controversy because these warrants vacuum the location . and that restraints on discretion are imposed by judges rather than the officers themselves.127127. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. 'fj)xX]rj{^= ,0JW&Gm[?jAq|(_MiW7m}"])#g_Nl/7m_l5^C{>?qD~)mwaT9w18Grnu_2H#vV8f4ChcQ;B&[\iTOU!D LJhCMP09C+ppaU>7"=]d3@6TS k pttI"*i$wGR,4oKGEwK+MGD*S9V( si;wLMzY%(+r j?{XC{wl'*qS6Y{tw/krVo??AzsN&j&morwrn;}vhvy7o2 V2? 1. See 28 U.S.C. Evidence of a crime is likely available in a private companys location history database only insofar as law enforcement requests data associated with a particular time and place. 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. 2019), or should readily be extended to other technologies, see, e.g., Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521, 527 (7th Cir. Application for Search Warrant, supra note 174. On the Android, it's simply called "Location". Law enforcement simply specifies a location and period of time, and, after judicial approval, companies conduct sweeping searches of their location databases and provide a list of cell phones and affiliated users found at or near a specific area during a given timeframe, both defined by law enforcement.1111. A coalition of more than 25 reproductive justice, civil liberties, and privacy groups are supporting the bill at introduction. If, instead, step two constitutes the search, law enforcement should not be able to seek additional location information about any users provided without either an additional warrant or explicit delineation of this second search in the original warrant. 27 27. See, e.g., Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). New Times (Jan. 16, 2020, 9:11 AM), https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374 [https://perma.cc/6RQD-JWYW]. Although these warrants have been used since 20162626. Geofence warrants are popular. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. at *7. ) Ng, supra note 9. Google Amicus Brief, supra note 11, at 45. Elm, supra note 27, at 13; see also 18 U.S.C. Lab. 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. New figures from Google show a tenfold increase in the requests from law enforcement, which target anyone who happened to be in a given location at a specified time. United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Google has reportedly received as many as 180 requests in a single week.2525. . Usually, officers identify a suspect or person of interest, then obtain a warrant from a judge to search the persons home or belongings. See id. The memorandum was obtained by journalists at BuzzFeed News. 2018); United States v. Diggs, 385 F. Supp. 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. A warrant requesting accounts located within the geographical area bordered to the north at 26.947300, -80.357595, to the east at 26.94672, -80.356715, to the south at 26.946227, -80.357316, and to the west at 26.946762, -80.358073, for example, does not illustrate the scope of the requested search. . 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 . Geofence Warrants On The Rise. It is, however, unclear how Google determines whether a request is overly broad. and has developed a [three]-step anonymization and narrowing protocol for when it does respond to them.6868. Katie Benner, Alan Feuer & Adam Goldman, F.B.I. For an overview of the Fourth Amendment at the Founding, see generally Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. the Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and requires that warrants be issued only upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4949. Now, Googles transparency report has revealed the scale at which people nationwide may have faced the same violation. Probable cause to search a private companys location records is easily established because evidence of a crime probably exists within these records.141141. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. Please check your email for a confirmation link. Id. Garrison, 480 U.S. at 84 (quoting United States v. Ross, 456 U.S. 798, 824 (1982)); see also Pharma I, No. If you have a warrant you need, or a template you feel would be good to add please email shortb@jccal.org. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. 2011) (Flaum, J., concurring), vacated, 565 U.S. 1189 (2012))). at *10. these criticisms are insufficient for the purposes of probable cause, which has never required certainty just probability. Harris, 568 U.S. at 244; Pringle, 540 U.S. at 371. Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. See Arson, 2020 WL 6343084, at *5. Wisconsin,2121. "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. There is a simple answer and it's this: just disable "Location" tracking in the settings on the phone. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. 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. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. Cf. With geofence warrants, police start with the time and location that a suspected crime took place, then request data from Google for the devices surrounding that location at that time, usually within a one- to two-hour window. 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. Carpenter v. United States, 138 S. Ct. 2206, 221718 (2018); Riley v. California, 573 U.S. 373, 38586 (2014); see, e.g., Arson, No. While some explain this practice by pointing to the Stored Communications Act,5959. 2019). In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. Conclusion. 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. Never fearcheck out our. Ct. May 9, 2018), https://int.nyt.com/data/documenthelper/764-fdlelocationsearch/d448fe5dbad9f5720cd3/optimized/full.pdf [https://perma.cc/TSL6-GFCD] (issuing an indefinite nondisclosure order); Amanda Lamb, Scene of a Crime? 591, 619 (2016) (explaining that probable cause requires the government to show a likely benefit that justifies [the searchs] cost). . They also vary in the evidence that they request. S8183, 20192020 Leg. The location data typically comes from Google, who collects data from their Android phone . See, e.g., Elm, supra note 27, at 11, 13. 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. Id. The geofence warrant meant that police were asking Google for information on all the devices that were near the location of an alleged crime at the approximate time it occurred, Price explained. Like the cell-site location information (CSLI) at issue in Carpenter v. United States,3232. 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]. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 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 . Brewster, supra note 14. Another covered solely a small L-shaped roadway,168168. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives.
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