See Berger v. New York, 388 U.S. 41, 56 (1967). . On the Android, it's simply called "Location". See Gates, 462 U.S. at 238. 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. Last week, Google responded to calls by a civil liberties coalition, including POGO, to issue a report of how often it receives geofence demands. One such feature is Apple's proposed child sexual abuse material detection (CSAM . Wilkes, 98 Eng. Ct. Feb. 1, 2017), https://www.documentcloud.org/documents/3519211-Edina-Police-Google-Search-Warrant-Redacted.html [https://perma.cc/7SCA-GGPJ] (requesting this information of suspects accounts along with their Google searches). Often, warrants remain sealed and criminal defendants never find out that these warrants played a role in their convictions. Never fearcheck out our. and geographic area delineated by the geofence warrant. I believe that iPhones that have Google apps like Gmail or Youtube running in the foreground have the capability to report location to Google. Id. 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. This Note focuses on the subsequent inquiry: If the Fourth Amendment is triggered, how should judges consider probable cause and particularity when reviewing warrant applications? Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies' digital toolbox. . Sess. 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 28 U.S.C. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. Rep. 1075 (KB). 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. 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 Katie Benner, Alan Feuer & Adam Goldman, F.B.I. Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. 1 v. Redding, 557 U.S. 364, 371 (2009) (citations omitted) (quoting Gates, 462 U.S. at 238, 244 n.13); see also Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). The private search doctrine does not apply because the doctrine requires a private entity independently to invade an individuals reasonable expectation of privacy before law enforcement does the same. Jorge Molina, for example, was wrongfully arrested for murder and was told only when interrogated that his phone without a doubt placed him at the crime scene.66. Memorandum from Timothy J. Shea, Acting Admr, Drug Enft Admin., to Deputy Atty Gen., Dept of Just. 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. Others ask for lists of all implicated users, their phone numbers, IP addresses, and more.6666. There is a simple answer and it's this: just disable "Location" tracking in the settings on the phone. 2011) (Flaum, J., concurring), vacated, 565 U.S. 1189 (2012))). 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). 605, was enacted in response to Olmstead v. United States, 277 U.S. 438 (1928), by banning the interception of wire communications). Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). 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). .). Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. 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. 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. 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. See id. Stored at Premises Controlled by Google (Pharma I), No. 1995 (2017). 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. 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. 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. and the Drug Enforcement Administration was given broad authority to conduct covert surveillance of protesters.108108. Id. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). 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]. In the probable cause context, time should be treated as just another axis like latitude and longitude along which the scope of a warrant can be adjusted. . Googles actions in all three parts of its framework are thus conducted in response to legal compulsion and with the participation or knowledge of [a] governmental official.8080. The results were stunning. and should, by default, be available to ensure the transparency of the courts decisionmaking process.6363. Washington, D.C.,2020. granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. 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. See Stanford, 379 U.S. at 482. Either way, judges consider only the warrant immediately before them and may not think through how their proposed tests will be extrapolated.179179. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. While traditional court orders permit searches related to known suspects, geofence warrants are issued specifically because a suspect cannot be identified.1010. Until now, geofence warrants have largely gone uncontested by U.S. judges, with rare . The geofence warrants served on Google shortly after the riot remained sealed. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 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. BTS, Baepsae, on The Most Beautiful Moment in Life Pt. Jake Laperruque, Project on Government Oversight, Torn between the latest phones? The best tool to defend that right in Email updates on news, actions, events in your area, and more. Law enforcement investigators have also made geofence requests to tech companies including Apple, Snapchat and Uber. The rise of geofence warrants in Virginia . Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies digital toolbox. 27 27. Spy Cams Reveal the Grim Reality of Slaughterhouse Gas Chambers. The three stage warrant process is based on an agreement between Google and the Department of Justice's Computer Crime and Intellectual . Berger, 388 U.S. at 56 ([T]he indiscriminate use of such devices in law enforcement[] . United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Please check your email for a confirmation link. Geofencing is used in advanced location-based services to determine when a device being tracked is within or has exited a geographic boundary. . But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. S. ODea, Number of Android Smartphone Users in the United States from 2014 to 2021, Statista (Mar. The avid biker would do loops around his Gainesville, Fla., neighborhood and track his rides with a fitness app on his Android phone. See Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). 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. . Va. June 14, 2019). . . 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 48081. Another covered solely a small L-shaped roadway,168168. In addition, he and his companies must modify their stalkerware to alert victims that their devices have been compromised. Stability Oversight Council, 865 F.3d 661, 668 (D.C. Cir. U. L. Rev. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. [T]he liberty of every [person] would be placed in the hands of every petty officer.9090. 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. Here's What You Need to Know about Battery Health Management in Catalina. Berger, 388 U.S. at 57. 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. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. to ensure that law enforcement across the country does not continue to abuse geofence warrants. Id. and their decisions informed and deliberate.5252. Sometimes, it will request additional location information associated with specific devices in order to eliminate false positives or otherwise determine whether that device is actually relevant to the investigation.7272. 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. Id. The password managers most recent data breach is so concerning, users need to take immediate steps to protect themselves. When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. Each one of these orders could sweep in hundreds or . 2017). Like the cell-site location information (CSLI) at issue in Carpenter v. United States,3232. installed on 2.5 billion active devices, is more widespread than Apple's iOS. U.S. Const. Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. 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. 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. By submitting "geofence" warrants, police are able to look at which phones . 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. Ct., 387 U.S. 523, 537 (1967); see also Orin S. Kerr, An Economic Understanding of Search and Seizure Law, 164 U. Pa. L. Rev. The order will indicate a small area where the incident occurred and a window of time when it happened. As a result, to better protect users data and to ensure uniformity of process, Google purports to always push back on overly broad requests6767. Google handed over the GPS coordinates and data, device data, device IDs, and time stamps for anyone at the library for a period of two hours; at the museum, for 25 minutes. See Arson, 2020 WL 6343084, at *10; Pharma II, 2020 WL 4931052, at *1617; Pharma I, 2020 WL 5491763, at *6. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. Lab. Servers Controlled by Google, Inc., No. The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. 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. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. 1848 (codified as amended in scattered sections of 18 U.S.C.). 1. iBox Service. 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. See Arson, 2020 WL 6343084, at *8. To assess only the former would gut the Fourth Amendments warrant requirements. In 2019, a single warrant in connection with an arson resulted in nearly 1,500 device identifiers being sent to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 636(a)(1); Fed. Complaint at 23, Rodriguez v. Google, No. Webster, supra note 5. (asking whether, if you are trying to text somebody who is simultaneously texting someone else, you will get a voice mail saying that your call is very important to us; well get back to you). 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. Of the courts that have considered these warrants, most have implicitly treated the search as the point when the private company first provides law enforcement with the data requested step two in Googles framework with no explanation why.7777. Sixty-seven percent of smartphone users who use navigation apps prefer Google Maps. 19. Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officers evidence search is that it raise a fair probabilityor a substantial chance of discovering evidence of criminal activity.139139. See Valentino-DeVries, supra note 25. Google is the most common recipient and the only one known to respond.4747. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. ([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. A single geofence request could include data from hundreds of bystanders. Congress must engage in proactive legislation as it has done with other technologies181181. merely by asking private companies. L. Rev. Each of these companies regularly share transparency reports detailing how often they hand over user info to law enforcement, but Google is the first to separately detail geofence warrants. If this is the case, whether the warrant is sufficiently particular and whether probable cause exists should be evaluated not with respect to the database generally, but in relation to the time period and geographic area that is actually searched. This Part explains why the Fourth Amendments warrant requirements should be tied to the scope of the search at step two, then explains what this might mean for probable cause and particularity. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. at 48081. 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). And that's just Google. Clayton Rice, K.C. A warrant that used Google location history to find people near the scene of a 2019 bank robbery violated their constitutional protection against unreasonable searches, a federal judge has ruled. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. In subsequent decisions, the Court reinforced the notion that probable cause for a single physical location cannot be widely extended to nearby places. March 15, 2022. The bar on general warrants has been well established since even before the Founding. In a long-awaited decision, a federal court in Virginia ruled in United States v. Chatrie that a geofence warrant violated the Fourth Amendment, but that the fruits of the unconstitutional search could nevertheless be used against the defendant under the good faith exception to the warrant requirement. . Many geofence warrants do not lead to arrests.111111. Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. These warrants often do not lead to catching perpetrators2222. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications). Stored at Premises Controlled by Google (Pharma II), No. Riley v. California, 573 U.S. 373, 385 (2014). Alfred Ng, Google Is Giving Data to Police Based on Search Keywords, Court Docs Show, CNET (Oct. 8, 2020, 4:21 PM), https://www.cnet.com/news/google-is-giving-data-to-police-based-on-search-keywords-court-docs-show [https://perma.cc/DVJ9-BWB3]. Geofence warrants necessarily involve the very sort of general, exploratory rummaging that the Fourth Amendment was intended to prohibit.105105. Lab. Emblematic of general warrants, these warrants should be highly suspect per se. CSLI,9999. In most cases, the information is in the form of latitude and longitude coordinates derived . Use of this site constitutes acceptance of our User Agreement and Privacy Policy and Cookie Statement and Your California Privacy Rights. Last . While this initial list may include dozens of devices, police then use their own investigative tools to narrow the list of potential suspects or witnesses using video footage or witness statements. the interstate nature of location data requires federal intervention for effective legislation. 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. 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. Google Amicus Brief, supra note 11, at 13. The time and place of the crime are necessarily known by law enforcement, giving rise to probable cause to search the relevant area. ; Fed. and probable cause for an apartment does not justify a search next door.120120. United States v. Jacobsen, 466 U.S. 109, 113 (1984). This Is How It Works., N.Y. Times (Apr. Both iPhone and Android have a one-click button to tap that disables everything. Thus far, however, these warrants have been involved in solving robbery, burglary, and murder cases. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. But geofence warrants do exactly that authorizing broad searches of entire location history databases, simply on the off chance that somebody connected with a crime might be found. at *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. Just this week, Kenosha lawmakers debated a bill that would make attending a riot a felony. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the . 789, 79091 (2013). 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. If a geofence search involves looking through a private companys entire location history database step one in the Google context there are direct parallels between geofence warrants and general warrants. The company then gathers information about all the devices that 1. The conversation has started and must continue in Congress.183183. But a warrant does not need to describe the exact item being seized,160160. Id. Id. Rep. 489 (KB). See Google Amicus Brief, supra note 11, at 14. 3d 37, 42 (D. Mass. But they can do even more than support legislation in one state. 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]. 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. 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. Groh v. Ramirez, 540 U.S. 551, 561 (2004). Id. 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. Google and other private companies act[] as. by a court of competent jurisdiction.6060. Critics noted that such a bill could penalize anyone attending peaceful demonstrations that, because of someone elses actions, become violent. and other states. Alamat: Jln. . Some, for example, will expand the search area by asking for devices located outside the search parameters but within a margin of error.6464. See Google Amicus Brief, supra note 11, at 1314. Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). xKGr) ]c .`;#JV~GfF"F6xfedmBF{-ym7i}g/b}hjnWow8Y"av4J?wm_5_/xq Probable cause to search a private companys location records is easily established because evidence of a crime probably exists within these records.141141. Search Warrant, supra note 5. First, Google and other companies may consider these requests compulsions, see Google Amicus Brief, supra note 11, at 13, perhaps because they were already required to search their entire databases, including the newly produced information, at step one, see supra p. 2515. Ct. Rev. 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 court also highlighted the length of time (fifteen to thirty minutes170170. Ng, supra note 9. Brewster, supra note 14. << /Filter /FlateDecode /Length 4987 >> The three tech giants have issued a public statement through a trade organization,Reform Government Surveillance,'' that they will support a bill before the New York State legislature. July 14, 2020). 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 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. The New York bill is still far from passage and impacts just one state. But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. . 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. On January 14, 2020, these rides made him a suspect in a local burglary.22. 2 (Big Hit Ent. "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. 20 M 392, 2020 WL 4931052, at *1617 (N.D. Ill. Aug. 24, 2020); In re Search of: Info. In other words, officer discretion must be cabined not fully eliminated. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to . at 498. 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. 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. Schuppe, supra note 1. Geofence warrants rely on the vast trove of location data that Google collects4242. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. See Berger v. New York, 388 U.S. 41, 5153 (1967). Thanks, you're awesome! Instead, many warrant applications provide only the latitude and longitude of the search areas boundaries.5757. That is because Apple doesn't store location data in a format . 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. Companies can still resist complying with geofence warrants across the country, be much more transparent about the geofence warrants it receives, provide all affected users with notice, and give users meaningful choice and control over their private data. 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. Particularly describing the former is straightforward. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. See Brewster, supra note 82. (Who Defends Your Data?) 2. . The online conversations that bring us closer together can help build a world thats more free, fair, and creative. 19-cr-00130 (E.D. %PDF-1.3 2012). In contrast, officers are engaged in the often competitive enterprise of ferreting out crime.5353.