Why is this size of area necessary? 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 . 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. On the one hand, the Court has recognized that, in certain circumstances, individuals have reasonable expectations of privacy in their location information.3131. And that's just Google. L.J. Webster, supra note 5. 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. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Riley, 573 U.S. at 385. See Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. Because it is rare to search an individual in the modern age. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). The location data typically comes from Google, who collects data from their Android phone . Id. Many geofence warrants do not lead to arrests.111111. imposes a heavier responsibility on this Court in its supervision of the fairness of procedures. (quoting Osborn v. United States, 385 U.S. 323, 329 n.7 (1966))); cf. at *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. When probable cause to search a garage does not even extend to a bedroom in the same house,147147. 20-cv-4688 (N.D. Cal. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. 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. Id. See, e.g., Berger, 388 U.S. at 51 (suggesting that section 605 of the Communications Act of 1934, 47 U.S.C. Particularly describing the former is straightforward. Geofence warrants are requested by law enforcement and signed by a judge to order companies like Google, Microsoft and Yahoo, which collect and store billions of location data points from its . vao].Vm}EA_lML/6~o,L|hYivQO"8E`S >f?o2 tfl%\* P8EQ|kt`bZTH6 sf? First, the narrowness of the anonymized list is largely in the hands of private companies, rather than the judiciary or legislature, which is impracticable in the long run. For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. Dozens of civil liberties groups and privacy advocates have called for banning the technique, arguing it violates Fourth Amendment protections against unreasonable searches, particularly for protesters. In that case, the . Oops something is broken right now, please try again later. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. 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). The overwhelming majority of the warrants were issued by courts to state and local law enforcement. Laperruque proposes, at minimum, that law enforcement should be pushed to minimize search areas, delete any data they access as soon as possible, and provide much more robust justifications for their use of the technique, similar to the requirements for when police request use of a wiretap. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 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. Law enforcement gets a warrant from a judge, then serves it to Google or Apple. Rep. 1075 (KB). 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. Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. Geofencing itself simply means drawing a virtual border around a predefined geographical area. See id. 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). .). Emily Glazer & Patience Haggin, Political Groups Track Protesters Cellphone Data, Wall St. J. A coalition of more than 25 reproductive justice, civil liberties, and privacy groups are supporting the bill at introduction. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). 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). Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. 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. Geofence Warrants On The Rise. That is because Apple doesn't store location data in a format . But in practice, it is not that clear cut. Id. Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. Pharma II, No. Google and other private companies act[] as. L. Rev. See Stanford, 379 U.S. at 482. Last week, Google responded to calls by a civil liberties coalition, including POGO, to issue a report of how often it receives geofence demands. 20 M 525, 2020 WL 6343084 (N.D. Ill. Oct. 29, 2020). Camara v. Mun. . We developed a process specifically for these requests that is designed to honor our legal obligations while narrowing the scope of data disclosed.". and Apple said . When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. A general warrant is one that specifie[s] only an offense, leaving to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.9191. 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). Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. about cell phone usage. Ct., 387 U.S. 523, 528 (1967). Smartphone Market Share, IDC (Dec. 15, 2020), https://www.idc.com/promo/smartphone-market-share/os [https://perma.cc/SF4Z-Z4LS]. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. Location data is inextricably tied to the freedoms of speech and association. Compare United States v. Ross, 456 U.S. 798, 821 (1982) ([A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.), with Arson, 2020 WL 6343084, at *10 (When the court grants a warrant for a unit in [an] apartment building for evidence of a wire fraud offense, it does not grant a warrant for that entire floor or the entire apartment building, but rather the specific apartment unit where there is a fair probability that evidence will be located.). 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. The bar on general warrants has been well established since even before the Founding. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). 2d 1, 34 (D.D.C. 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. Here's Techdirt's coverage of two consecutive rejections of a geofence warrant published in June 2020. 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. Now, Googles transparency report has revealed the scale at which people nationwide may have faced the same violation. Why this time? 2019). Geofence and reverse keyword warrants completely circumvent the limits set by the Fourth Amendment. 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. Apple plans to announce ARM transition for all Macs at WWDC 2020. Why wouldn't a more narrow setting work? The Fourth Amendment provides that warrants must particularly describ[e] the place to be searched, and the persons or things to be seized.158158. . 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. & Poly 211, 21315 (2006). 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. Last year alone, the company received over 11,550 geofence warrants from federal, state, and local law enforcement. 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]. While this Note focuses primarily on federal law, its application extends to state law and carries particular relevance for the (at least) eighteen states that have largely applied Fourth Amendment law to state issues. Washington, D.C.,2020. 27 27. 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]. Google Amicus Brief, supra note 11, at 3. and probable cause for an apartment does not justify a search next door.120120. and reviled tools in law enforcement agencies digital toolbox. See Berger v. New York, 388 U.S. 41, 57 (1967). Wisconsin,2121. The other paradigmatic cases are Entick v. Carrington (1765) 95 Eng. Florida,1313. 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. but to Google or an Apple, saying this is a geographic region . at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . 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. and the Supreme Court has maintained that warrants are generally preferred.3030. 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. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications). The fact that geofence warrants capture the data of innocent people is not, by itself, a problem for Fourth Amendment purposes since many technologies such as security cameras do the same. Please check your email for a confirmation link. Mobile Fact Sheet, Pew Rsch. and not find a cell phone on the person,142142. many do not.7474. 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). The same principle should apply to geofence warrants. Alamat: Jln. In fact, it is more precise than either CSLI or GPS.3434. Indeed, users proactively enable location tracking,3636. at *7. 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. 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. Check your Apple warranty status. . 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 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. Va. June 14, 2019). Judges do not consistently engage in the informed and deliberate decisionmaking that the Fourth Amendment contemplated. are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. 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 *3 (N.D. Ill. July 8, 2020) (noting that particularity is inversely related to the quality and breadth of probable cause). 3 0 obj . 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). In listing the things to be seized, a warrant must list all the data that law enforcement intends to collect throughout the entirety of Googles process, which includes, at least, the latitude/longitude coordinates and timestamp of the reported location information of each device identified by Google in step one.173173. Geofence warrants are popular. As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. Affidavit at 1, In re Search of Info. A person does notand should notsurrender all Fourth Amendment protection by venturing into the public sphere.187187. 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. 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. The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. The decision believed to be the first of its kind could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years, privacy . granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. 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. This Part describes the limited role judges and the public currently play in approving and scrutinizing geofence warrants and how Google responds to them. The Reverse Location Search Prohibition Act, A. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. Facebook has also publicly denounced the use of geofence warrants, with a spokesperson outwardly supporting the bill. I'm sure once when I was watching the keynote on a new iOS they demonstrated that you could open up maps and draw a geofence around an area so that you could set a reminder for when you leave or enter that area without entering an address. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) The information comes in three phases. 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. See id. Id. . In Wilkes v. Wood,9292. See 28 U.S.C. Around 5 p.m. on May 20, 2019, a man with a gun robbed a bank near Richmond, Virginia, escaping with $195,000. P. 41(e)(2) (providing a more flexible process for seeking electronically stored information). 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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