Part I describes the limited judicial and public oversight that these warrants currently receive, then explains the process by which Google responds to them. Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies digital toolbox. To assess only the former would gut the Fourth Amendments warrant requirements. amend. Geofences are a tool for tracking location data linked to specific Android devices, or any device with an app linked to Google Maps. 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. Id. Few are as fortunate as McCoy, who at least was informed and had the opportunity to block the request in court. . Maine,1414. Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. 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]. 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. 19-cr-00130 (E.D. 99, 12124 (1999). . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). The Richmond police used personal data from Google Maps to crack a six-month-old bank robbery, triggering protests from the suspect's counsel that the use of what is known as a "geofence warrant . Ng, supra note 9. 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. While some explain this practice by pointing to the Stored Communications Act,5959. at 48081. P. 41(e)(2). 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. 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. Riley v. California, 573 U.S. 373, 403 (2014) (internal quotation marks omitted); see also Marshall v. Barlows, Inc., 436 U.S. 307, 311 (1978) (describing historical opposition to general warrants); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); Stanford, 379 U.S. at 48184. United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). Rep. 807 (KB); and Money v. Leach (1765) 97 Eng. The geofence warrants served on Google shortly after the riot remained sealed. << /Filter /FlateDecode /Length 4987 >> 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). 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. Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). ([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. Brinegar, 338 U.S. at 176; see also Heien v. North Carolina, 574 U.S. 54, 60 (2014) (To be reasonable is not to be perfect . See, e.g., Fed. The cellphone dragnet called a geofence warrant harvests the location history generated by users of electronic devices that is stored by Google in a vast repository known as Sensorvault. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Johnson v. United States, 333 U.S. 10, 14 (1948). As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. Just., Summer 2020, at 7. 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. By submitting "geofence" warrants, police are able to look at which phones . . 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? Both iPhone and Android have a one-click button to tap that disables everything. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. by a court of competent jurisdiction.6060. at *8. 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. Geofence warrants are sometimes referred to as reverse location warrants. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. Third, and finally, Google provides account-identifying information, such as the first names, last names, and email addresses of the users.7676. That Made Him a Suspect., NBC News (Mar. Google Amicus Brief, supra note 11, at 45. Why wouldn't just one individuals phone work? he says. Id. at *7. ) Their support is welcome, especially since. See Google Amicus Brief, supra note 11, at 1314. 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. 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. While Google has responded to requests for additional information at step two without a second court order, see Paul, supra note 75, this compliance does not mean the information produced is a private search unregulated by the Fourth Amendment. the interstate nature of location data requires federal intervention for effective legislation. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). Geofence warrants allow law enforcement officers to search when they don't have a potential suspect. 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. Government practice further suggests that the search begins when companies look through their entire databases. Lab. Id. In a legal brief, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. See, e.g., Stephen Silver, Police Are Casting a Wide Net into the Deep Pool of Google User Location Data to Solve Crimes, AppleInsider (Mar. Google and other private companies act[] as. A single geofence request could include data from hundreds of bystanders. 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. 19-cr-00130 (E.D. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. . If as is common practice, see, e.g., Affidavit for Search Warrant, supra note 65, at 23 officials had requested additional location data as part of step two for these 1,494 devices thirty minutes before and after the initial search, this subsequent search would be broader than many geofence warrants judges have struck down as too probing, see, e.g., Pharma II, No. In Berger v. New York,8484. See Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. This Gizmodo story states that it ranges "from tiny spaces to larger areas covering multiple blocks," while the warrant in WRAL's recent story encompassed "nearly 50 acres.". Carpenter v. United States, 138 S. Ct. 2206, 221718 (2018); Riley v. California, 573 U.S. 373, 38586 (2014); see, e.g., Arson, No. 2015) (emphasizing, albeit in a different context, that society often refuses to change and even perpetuates inherently unbalanced social structures and yet blames those disadvantaged for not being able to keep up). the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Cond Nast. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020). It should be a last resort, because its so invasive.. 2019). 2016) (en banc). In contrast, law enforcement in Arson explained why all the areas included in the geofence could potentially reveal evidence of witnesses or coconspirators. 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. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . P. 41(e)(2) (providing a more flexible process for seeking electronically stored information). Id. Va. June 14, 2019). Id. Search Warrant, supra note 5. See Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). To leave probable cause determinations to officers would reduce the [Fourth] Amendment to a nullity and leave the peoples homes secure only in the discretion of police officers.5454. They sometimes approve warrants in a few minutes5555. 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. When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. Geofencing with iPhone. A secondary viewing method can be used via the following link: Dropbox Files. R. Crim. United States v. Ross, 456 U.S. 798, 824 (1982). 20 M 297, 2020 WL 5491763, at *3 (N.D. Ill. July 8, 2020) (noting that particularity is inversely related to the quality and breadth of probable cause).