These searches, which occur [w]ith just the click of a button and at practically no expense,102102. 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. Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. They sometimes approve warrants in a few minutes5555. Fifth Circuit Delivers a New Law Enforcement Functions Test for Identifying Government Actors. 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. 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. courts have suggested as much,2929. 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. 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. Spinelli v. United States, 393 U.S. 410, 419 (1969); see also United States v. Leon, 468 U.S. 897, 914 (1984); Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. Allen, 625 F.3d 830, 840 (5th Cir. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. . 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. See, e.g., Search Warrant, supra note 5. July 14, 2020). and potentially without realiz[ing] the technical details or broad scope of the searches theyre authorizing5656. 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. probable causes exact requisite probability remains elusive. While geofence warrants are a fairly new tactic, surveillance of Black activists is not. 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 Geofence warrants, which compel Google to provide a list of devices whose location histories indicate they were near a crime scene, are used thousands of times a year by American law enforcement . 2020) (quoting Corrected Brief for Appellee at 28, Leopold, 964 F.3d 1121 (No. Additionally, geofence warrants are usually sealed by judges.5858. 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. at 48586. 19-cr-00130 (E.D. . .). This list is and will always be a work in progress and new warrants will be added periodically. That Made Him a Suspect., NBC News (Mar. BTS, Baepsae, on The Most Beautiful Moment in Life Pt. Russell Brandom, Feds Ordered Google Location Dragnet to Solve Wisconsin Bank Robbery, The Verge (Aug. 28, 2019, 4:34 PM), https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi [https://perma.cc/JK5D-DEXM]. Why wouldn't just one individuals phone work? he says. But in practice, it is not that clear cut. and cases122122. 605, was enacted in response to Olmstead v. United States, 277 U.S. 438 (1928), by banning the interception of wire communications). (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]. Google Amicus Brief, supra note 11, at 89. 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. at 48081. For an overview of deference to police knowledge, see generally Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. . It should be a last resort, because its so invasive.. 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. 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. Mar. Safford Unified Sch. R. Crim. The three tech giants have issued a. ,'' that they will support a bill before the New York State legislature. warrant, "geofence warrants," which are testing the boundaries of the Fourth Amendment. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. Id. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. Google and other private companies act[] as. The "geofence" is the boundary of the area where the criminal activity occurred, and is drawn by the government using geolocation coordinates on a map attached to the warrant. Typically, a geofence warrant calls on Google to access its database of location information. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Riley, 573 U.S. at 385. Though admittedly an open question, Google has advocated that they are,2828. Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. While probable cause forces the government to prove that the need to search is greater than any invasion of privacy,133133. Id. Even assuming that complying with a geofence warrant constitutes a search, there remains a difficult and open threshold question about when the search occurs. See, e.g., Affidavit for Search Warrant, supra note 65, at 23. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. But see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. . See Arson, 2020 WL 6343084, at *5. Id. See Skinner v. Ry. 2017). . Execs. Assn, 489 U.S. 602, 614 (1989). This sends a Parts of the fediverse have been in something of an uproar recently over an experimental search service that was under development called (appropriately enough) Searchtodon. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . Google is the most common recipient and the only one known to respond.4747. 2006). "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. The existence of probable cause, for example, must be tied not only to whether the database contains evidence of the crime but also to whether probable cause extends to the areas for which location data is requested. Brewster, supra note 82. 2. (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). 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 . Ring Road Utara, Kaliwaru, Condongcatur, Kabupaten Sleman, Daerah Istimewa Yogyakarta 55282. According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . . 2018); United States v. Saemisch, 371 F. Supp. Why is this size of area necessary? (1763) 98 Eng. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . 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. Last year, advocates from the New York Civil Liberties Union, the Surveillance Technology Oversight Project, and a host of other organizations began working with New York state senator Zellnor Myrie and assemblymember Dan Quart to pass the "reverse location and reverse keyword search prohibition act," the nations first proposed ban on geofence warrants. Probable cause has always required some degree of specificity: [N]o greater invasion of privacy [should be] permitted than [is] necessary under the circumstances.114114. In Wilkes v. Wood,9292. This rummaging and the general [a]wareness that the government may be watching chills associational and expressive freedoms.106106. 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. 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. The Gainesville Police Department had gotten something called a geofence warrant granted by the Alachua County court. 2703(a), (b)(A), (c)(A). Police charged a man with robbery of the bank a year earlier after accessing phone-location data kept by Google. 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. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. 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. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of Sensorvault.7979. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. Texas,1818. (May 31, 2020). In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. . See id. Although the Court in Carpenter recognized the eroding divide between public and private information, it maintained that its decision was narrow and refused to abandon the third party doctrine.3838. In fact, it is this very pervasiveness that has led the Court to hold that searching a cell phone and obtaining CSLI are searches.145145. In the geofence context, the relevant consideration is the latter, and, as discussed, a geofence warrant searches two places: (1) the third partys location history records and (2) the time and geographic area delineated by the geofence warrant. 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. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. The geofence warrants served on Google shortly after the riot remained sealed. and reviled tools in law enforcement agencies digital toolbox. 2018); United States v. Diggs, 385 F. Supp. Id. As a result, and because Google has recently revealed how it processes these warrants, this Note discusses Google in particular detail, though it functions as a stand-in for any company that collects and stores location data. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. Google Amicus Brief, supra note 11, at 13. 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. There is also often the risk of obtaining information about individuals in their homes an intrusion that has always been unreasonable without particularized probable cause.124124. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). 1181 (2016). If law enforcement needed to establish only probable cause to search a private companys location history records, probable cause would always be satisfied with the same choice statistics121121. After spending several thousand dollars retaining a lawyer, McCoy successfully blocked the release.44. 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. The time and place of the crime are necessarily known by law enforcement, giving rise to probable cause to search the relevant area. Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. 2. Police around the country have drastically increased their use of geofence warrants, a widely criticized investigative technique that collects data from any user's device that was in a specified area within a certain time range, according to new figures shared by Google. 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). First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. Id. MetLife, Inc. v. Fin. 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 size of the area may vary. Berger, 388 U.S. at 57. Clayton Rice, K.C. Elm, supra note 27, at 13; see also 18 U.S.C. The . GRAND RAPIDS, Mich. Geofence warrants are helping law enforcement agencies solve crimes using your cell phone's location data. and raise interesting and novel Fourth Amendment questions, they have rarely been studied. 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. Wilkes, 98 Eng. The Warrant included the following photograph of the area with the geofence superimposed over it: The Warrant sought location data for every device present within the geofence from 4:20 p.m. to 5:20 p.m. on the day of the robbery. 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. Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). Thus, in order for the warrant requirements to mean anything, probable cause must be required for the time and geographic area swept into the geofence search. Geofence warrants represent both a continuation and an evolution of this relationship. Ever-expanding cloud storage presents more risks than you might think. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to . Valentino-DeVries, supra note 25. This Is How It Works., N.Y. Times (Apr. Search Warrant, supra note 5. The Act does not mention sealing, and the government has conceded there are no default sealing or nondisclosure provisions.6161. 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. See Florida v. Jardines, 569 U.S. 1, 6 (2013) ([T]he home is first among equals.); Kyllo v. United States, 533 U.S. 27, 40 (2001) (We have said that the Fourth Amendment draws a firm line at the entrance to the house . many do not.7474. 27 27. Carpenter, 138 S. Ct. at 221920. 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. 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. Stability Oversight Council, 865 F.3d 661, 668 (D.C. Cir. 18 U.S.C. 2d 1, 34 (D.D.C. 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. 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]. 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]. These reverse warrants have serious implications for civil liberties. 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). 371 U.S. 471 (1963). 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). Id. Geofence warrants rely on the vast trove of location data that Google collects4242. Id. Both iPhone and Android have a one-click button to tap that disables everything. report. 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]. Its closest competitor is Waze, which is also owned by Google. The Virginia Geofence Warrant. 1. No. 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. But months later, in January of this year, McCoy got an email from Google saying that his data was going to be released to local police. and the possibility of the federal government scaling up such surveillance to identify every single person at a protest, regardless of whether or not they broke the law or any suspicion of wrongdoing raises core constitutional concerns.110110. Each one of these orders could sweep in hundreds or . 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. 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 . . 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]. Other tech companies that collect location data, including Apple, Microsoft, and Uber, receive similar requests each year. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." 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. See United States v. Jones, 565 U.S. 400, 402 (2012); United States v. Karo, 468 U.S. 705, 709, 717 (1984). I believe that iPhones that have Google apps like Gmail or Youtube running in the foreground have the capability to report location to Google. 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. 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. Meg OConnor, Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder, Phx. Washington, D.C.,2020. See, e.g., Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). Google Amicus Brief, supra note 11, at 45. . 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. Oops something is broken right now, please try again later. Riley Panko, The Popularity of Google Maps: Trends in Navigation Apps in 2018, The Manifest (July 10, 2018), https://themanifest.com/mobile-apps/popularity-google-maps-trends-navigation-apps-2018 [https://perma.cc/K2HT-3RVP]. 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]. Geofencing is used in advanced location-based services to determine when a device being tracked is within or has exited a geographic boundary. . 1241, 1245, 126076 (2010) (arguing that [t]he practice of conditioning warrants on how they are executed, id. Just., Summer 2020, at 7. The Reverse Location Search Prohibition Act, A. 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. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. Id. granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. Around 5 p.m. on May 20, 2019, a man with a gun robbed a bank near Richmond, Virginia, escaping with $195,000. See, e.g., Search Warrant, supra note 5. Zachary McCoy went for a bike ride on a Friday in March 2019. Laperruque argues that geofence warrants could have a chilling effect, as people forgo their right to protest because they fear being targeted by surveillance. Relevant evidence could include the probability of finding location data of coconspirators or potential witnesses. 1. iBox Service. In California, geofence warrant requests leaped from 209 in 2018 to more than 1,900 two years later. and balances two competing interests. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. See Ornelas v. United States, 517 U.S. 690, 700 (1996); Wong Sun v. United States, 371 U.S. 471, 480 (1963); Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark L. Rev. They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. KRWEa7JC^z-kPdhr_ 3J*d 0G -p2K@u&>BXQ?K2`-P^S J:9EU(2U80A#[P`##A-7P=;4|) J(D/UJK`%h(X!v`_}#Y^SL`D( :BPH:0@K?> Z4^'GdA@`D.ezE|k27T G+ev!uE5@GSIL+$O5VBEUD 2t%BZfJzt:cYM:Tid3t$ 2 (Big Hit Ent. Id. Law enforcement . 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. CSLI,9999. 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. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. Why wouldn't a more narrow setting work? Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. . Many geofence warrants do not lead to arrests.111111. Berger, 388 U.S. at 57. The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. S8183, 20192020 Leg. 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. The government must thus establish probable cause for the time146146. Mobile Fact Sheet, Pew Rsch. and the time period at issue (the wee hours of the morning. 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. ; see, e.g., Search Warrant, supra note 5. We looked for any warrant described as targeting . 2013), vacated, 800 F.3d 559 (D.C. Cir. 20-cv-4688 (N.D. Cal. See Berger v. New York, 388 U.S. 41, 5153 (1967). Potentially, Apple iPhones can report data to Sensorvault under the right conditions. Support A.B. In other words, the characterization of a geofence warrant as a search in the first place likely relies in part on the prevalence of cell phones. 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. Even more strikingly, this level of intrusion is often conducted with little to no public safety upside. Location History Records. Id. Government practice further suggests that the search begins when companies look through their entire databases. Google now reports that geofence warrants make up more than 25% of all the warrants Google receives in the U.S., the judge wrote in her ruling. This type of devastating scheme ensnares victims and takes them for all theyre worthand the threat is only growing.