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. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. Id. Id. 84/ S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also supports. % Schuppe, supra note 1. The government must thus establish probable cause for the time146146. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. See, e.g., Transcript of Oral Argument at 44, City of Ontario v. Quon, 560 U.S. 746 (2010) (No. 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. 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. The New York bill is still far from passage and impacts just one state. See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). See Arson, 2020 WL 6343084, at *10; Pharma II, 2020 WL 4931052, at *1617; Pharma I, 2020 WL 5491763, at *6. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. Many geofence warrants do not lead to arrests.111111. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Google is the most common recipient and the only one known to respond.4747. 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. The conversation has started and must continue in Congress.183183. Congress must engage in proactive legislation as it has done with other technologies181181. Presumably, this choice is because the search requested by the government seems limited on the warrant applications face to the specific geographic coordinates and timestamps provided. But in practice, it is not that clear cut. Rather than waiting for challenges to geofence warrants to percolate and make their way up the court system,180180. from Android usersapproximately 131.2 million Americans4343. Minnesota,1515. 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]. 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. See Google Amicus Brief, supra note 11, at 10; see also Carpenter, 138 S. Ct. at 2218 (recognizing that high technological precision increases the likelihood that a search exists); United States v. Beverly, 943 F.3d 225, 230 n.2 (5th Cir. The court also highlighted the length of time (fifteen to thirty minutes170170. 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? Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. 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. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. The information comes in three phases. Now, a group of researchers has learned to decode those coordinates. See S.B. Maryland v. Garrison, 480 U.S. 79, 84 (1987). at 57. (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). Safford Unified Sch. Google Told Them, MPRnews (Feb. 7, 2019, 9:10 PM), https://www.mprnews.org/story/2019/02/07/google-location-police-search-warrants [https://perma.cc/Q2ML-RBHK] (describing a six-month nondisclosure order). . Time and Place. Sixty-seven percent of smartphone users who use navigation apps prefer Google Maps. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. The greater the privacy interest, the more stringent the particularity requirement.159159. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. without maps to visualize the expansiveness of the requested search or a list of hospitals, houses, churches, and other locations with heightened privacy interests incidentally included in the targeted area. How to Encrypt any File, Folder, or Drive on Your System, The Hunt for the Dark Webs Biggest Kingpin, Part 1: The Shadow. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. to ensure that law enforcement across the country does not continue to abuse geofence warrants. 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. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. . Rep. 1075 (KB). See Maryland v. Garrison, 480 U.S. 79, 85 (1987). We looked for any warrant described as targeting . In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. Last . 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? 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. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172. 19, 2018), 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://perma.cc/42VM-VUSD] (reporting that only one in four geofence warrants resulted in an arrest by the Raleigh Police Department). 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. Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. . Rather than issuing a warrant for data on a specific individual, these warrants seek information on all of the devices in a given area at a given time. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. In order for step twos back-and-forth to be lawful, therefore, the geofence warrant must have authorized these further searches. .); Google Amicus Brief, supra note 11, at 14 (To produce a particular users CSLI, a cellular provider must search its records only for information concerning that particular users mobile device.). Many are rendered useless due to Googles slow response time, which can take as long as six months because of Sensorvaults size and the large number of warrants that Google receives.112112. at 48081. All requests from government and law enforcement agencies outside of the United States for content, with the exception of emergency circumstances (dened below in Emergency Requests), must comply (1763) 98 Eng. 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. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . 25102522, which would require law enforcement to establish necessity. 20 M 392, 2020 WL 4931052, at *1 (N.D. Ill. Aug. 24, 2020); Pharma I, No. Geofence location and keyword warrants are new law enforcement tools that have privacy experts concerned. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. 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. 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. 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. . This Is How It Works., N.Y. Times (Apr. Though admittedly an open question, Google has advocated that they are,2828. 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]. While geofence warrants are a fairly new tactic, surveillance of Black activists is not. While some explain this practice by pointing to the Stored Communications Act,5959. It ensures that the search will be carefully tailored to its justifications126126. and should, by default, be available to ensure the transparency of the courts decisionmaking process.6363. 19. The three tech giants have issued a. ,'' that they will support a bill before the New York State legislature. 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. From January to June 2020, for example, Google receivedfrom domestic law enforcement alone15,588 preservation requests, 19,783 search warrants, and 15,537 subpoenas, eighty-three percent of which resulted in disclosure of user information.4141. Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). 591, 619 (2016) (explaining that probable cause requires the government to show a likely benefit that justifies [the searchs] cost). See Carpenter v. United States, 138 S. Ct. 2206, 2211, 2217 (2018). (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]. Carpenter, 138 S. Ct. at 221920. 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. Its closest competitor is Waze, which is also owned by Google. Conclusion. 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. 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 other paradigmatic cases are Entick v. Carrington (1765) 95 Eng. As a result, geofence warrants are general warrants and should be unconstitutional per se. 388 U.S. 41 (1967). 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. The company then gathers information about all the devices that amend. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. Alamat: Jln. 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. 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. Geofence and reverse keyword warrants completely circumvent the limits set by the Fourth Amendment. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 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. . . While all geofence warrants provide a search radius and time period, they otherwise vary greatly. 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]. Va. June 14, 2019). merely by asking private companies. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. Police charged a man with robbery of the bank a year earlier after accessing phone-location data kept by Google. In California, geofence warrant requests leaped from 209 in 2018 to more than 1,900 two years later. 2020) (quoting Corrected Brief for Appellee at 28, Leopold, 964 F.3d 1121 (No. Mar. Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). and potentially without realiz[ing] the technical details or broad scope of the searches theyre authorizing5656. 2 (Big Hit Ent. Geofences are a tool for tracking location data linked to specific Android devices, or any device with an app linked to Google Maps. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . The same principle should apply to geofence warrants. 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. What kind of information do officers receive? Id. vao].Vm}EA_lML/6~o,L|hYivQO"8E`S >f?o2 tfl%\* P8EQ|kt`bZTH6 sf? See Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018) (Wireless carriers collect and store CSLI for their own business purposes. 7, 2020, 6:22 AM), https://www.nbcnews.com/news/us-news/google-tracked-his-bike-ride-past-burglarized-home-made-him-n1151761 [https://perma.cc/73TP-KBXR]. Laperruque argues that geofence warrants could have a chilling effect, as people forgo their right to protest because they fear being targeted by surveillance. at 221718; Jones, 565 U.S. at 429 (Alito, J., concurring); 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. 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. 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. Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). MetLife, Inc. v. Fin. Servers Controlled by Google, Inc., No. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (Whether the Government employs its own surveillance technology . Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. L. Rev. or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements . 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. 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. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. 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. Google Amicus Brief, supra note 11, at 45. U.S. Const. and their decisions informed and deliberate.5252. Lamb, supra note 5. 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. Geofence warrants are popular. . Id. it relies in large part on police expertise and intuition134134. On the iPhone it's called "Location Services". 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. According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. See id. See Ornelas v. United States, 517 U.S. 690, 700 (1996); Wong Sun v. United States, 371 U.S. 471, 480 (1963); Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark L. Rev. 3d 37, 42 (D. Mass. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. Clayton Rice, K.C. If a geofence warrant is a search, it is difficult to understand why the searchs scope is limited to step two and does not include step one. The memorandum was obtained by journalists at BuzzFeed News. Relevant evidence could include the probability of finding location data of coconspirators or potential witnesses. See Sidney Fussell, Creepy Geofence Finds Anyone Who Went Near a Crime Scene, Wired (Sept. 4, 2020, 7:00 AM), https://www.wired.com/story/creepy-geofence-finds-anyone-near-crime-scene [https://perma.cc/PC3Q-ZCMG]. Since then, it has generally been understood that no warrant can authorize the search of everything or everyone in sight.9696. Id. On the one hand, individuals have a right to be protected against rash and unreasonable interferences with privacy and from unfounded charges of crime.131131. Now Its Paused, The Biggest US Surveillance Program You Didnt Know About. In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. To protect individual privacy and dignity against arbitrary government intrusions,4848. 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 Geofence warrants have become increasingly common over the past decade. Rep. 489 (KB). See generally Orin Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257 [https://perma.cc/BDR5-6P6T]. Pharma II, No. Part I describes the limited judicial and public oversight that these warrants currently receive, then explains the process by which Google responds to them. Elm, supra note 27, at 13; see also 18 U.S.C. Every DJI quadcopter broadcasts its operator's position via radiounencrypted. Similarly, Minneapolis police requested Google user data from anyone within the geographical region of a suspected burglary at an AutoZone store last year, two days after protests began. Please check your email for a confirmation link. Lab. 1241, 1245, 126076 (2010) (arguing that [t]he practice of conditioning warrants on how they are executed, id. Geofence warrants rely on the vast trove of location data that Google collects4242. 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. Geofencing itself simply means drawing a virtual border around a predefined geographical area. After judicial approval, a geofence warrant is issued to a private company. OConnor, supra note 6. 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. Thanks, you're awesome! Id. See, e.g., Elm, supra note 27, at 11, 13. 1181 (2016). R. Crim. Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. Id. Ct. Rev. all of which at least require law enforcement to identify a specific suspect or target device. 138 S. Ct. 2206. the information retrieved in response to a geofence warrant is pervasive, detailed, revealing, retroactive, and cheap.3333. On the one hand, the Court has recognized that, in certain circumstances, individuals have reasonable expectations of privacy in their location information.3131. See Berger v. New York, 388 U.S. 41, 56 (1967). 27 27. zS Chrome is not limited to mobile devices running the Android operating system and can also be installed and used on Apple devices.
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