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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). and companies often specify that they may provide this data to law enforcement in response to warrants or subpoenas.3737. Law enforcement gets a warrant from a judge, then serves it to Google or Apple. at 13. Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. 20-cv-4688 (N.D. Cal. Government practice further suggests that the search begins when companies look through their entire databases. See United States v. Patrick, 842 F.3d 540, 54245 (7th Cir. at 480. to find evidence whether by chance or other means.118118. 2006). 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. Its closest competitor is Waze, which is also owned by Google. 18 U.S.C. They are paradigmatic dragnets that run[] against everyone.104104. all of which at least require law enforcement to identify a specific suspect or target device. 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. Geofence warrants seek location data on every person within a specific location over a certain period of time. 20 M 297, 2020 WL 5491763, at *1, *3 (N.D. Ill. July 8, 2020). Geofence warrants , or reverse-location warrants, are a fairly new concept. . 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. Brinegar v. United States, 338 U.S. 160, 176 (1949); see also United States v. Di Re, 332 U.S. 581, 595 (1948) (explaining that probable cause functions, in part, to place obstacles in the way of a too permeating police surveillance). Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). 2518(1)(c). March 15, 2022. Second, this list is often quite broad. . The memorandum was obtained by journalists at BuzzFeed News. . The Things Seized. But in a dense city, even a relatively narrow geofence warrant would inevitably capture innocent citizens visiting not only busy public streets and commercial establishments, but also gyms, medical offices, and religious sites, revealing, by easy inference, political and religious associations, sexual orientation, and more.123123. They also vary in the evidence that they request. The difference between a tower dump and step one of Googles framework is obvious: the tower dump involves only data tied to the cell towers location, while Google searches all of its location data even though none of it may be within the parameters of a geofence warrant. L. Rev. Id. Some, for example, will expand the search area by asking for devices located outside the search parameters but within a margin of error.6464. 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. But California's OpenJustice dataset, where law enforcement agencies are required by state law to disclose executed geofence warrants or requests for geofence information, tells a completely different story.. A Markup review of the state's data between 2018 and 2020 found only 41 warrants that could clearly constitute a geofence warrant. Similarly, with a keyword warrant, 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. The Court has recognized that the reasonableness standard introduces uncertainty, see United States v. Leon, 468 U.S. 897, 914 (1984), and many have criticized the standards flexibility and have called for its further definition, see, e.g., United States v. Ventresca, 380 U.S. 102, 117 (1965) (Douglas, J., dissenting); Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 Miss. 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. Washington, D.C.,2020. 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. See Carpenter v. United States, 138 S. Ct. 2206, 2211, 2217 (2018). 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020). On January 14, 2020, these rides made him a suspect in a local burglary.22. In Ohio, requests rose from seven to 400 in that same time. It should be a last resort, because its so invasive.. Thus, the conclusion that a geofence warrant involves a search of location data within certain geographic and temporal parameters, rather than a general search through a companys database, should be the beginning, not the end, of the analysis.129129. 19-cr-00130 (E.D. at *10. these criticisms are insufficient for the purposes of probable cause, which has never required certainty just probability. 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, e.g., Elm, supra note 27, at 11, 13. 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. Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. Though Apple, Lyft, Snapchat, and Uber have all received these warrants,4646. Take a reasonably probable hypothetical: In response to the largest set of geofence warrants revealed to date, Google provided law enforcement with the location for 1,494 devices. 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. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. 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]. Id. Geofence warrants work differently from typical search warrants. zS 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. 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. . See, e.g., Application for Search Warrant (Minn. Hennepin Cnty. 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. In Wong Sun v. United States,115115. 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. After producing a narrowed list of accounts in response to a warrant, companies often engage in a back-and-forth with law enforcement, where officials requestadditional location information about specific devices from before or after the requested timeframe to narrow the list of suspects.8282. The information comes in three phases. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. Thus, a "geofence warrant" provides the government the ability to obtain location data for a Google user for a particular area and, eventually, subscriber information for the account holder using . United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). Id. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. As a result, Molina dropped out of school, lost his job, car, and reputation, and still has nightmares about sitting alone in his jail cell.88. A single geofence request could include data from hundreds of bystanders. 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]. . Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 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. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. 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]. 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]. Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. 20 M 392, 2020 WL 4931052, at *1617 (N.D. Ill. Aug. 24, 2020); In re Search of: Info. Explore the stories of slave revolts, the coded songs of Harriet Tubman, civil rights era strategies for circumventing "Ma Bell," and the use of modern day technology to document police abuse. If they are not unconstitutional general warrants because the searched location data is confined to a particular space and time, courts should evaluate whether a warrant is supported by probable cause with respect to that area. 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. 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 major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. Ct., 387 U.S. 523, 528 (1967). 'Geofence warrant' unconstitutional, judge rules in Virginia - Yahoo! 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. . Google Geofence Warrants Endanger PrivacyJudges Now See The Threat Recently, users filed a class action against Google on these grounds. 'fj)xX]rj{^= ,0JW&Gm[?jAq|(_MiW7m}"])#g_Nl/7m_l5^C{>?qD~)mwaT9w18Grnu_2H#vV8f4ChcQ;B&[\iTOU!D LJhCMP09C+ppaU>7"=]d3@6TS k pttI"*i$wGR,4oKGEwK+MGD*S9V( si;wLMzY%(+r j?{XC{wl'*qS6Y{tw/krVo??AzsN&j&morwrn;}vhvy7o2 V2? The Virginia Geofence Warrant. and cell-site simulators,100100. 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]. 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. 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 Spy Cams Reveal the Grim Reality of Slaughterhouse Gas Chambers. 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. Cellphone dragnet used to find bank robbery suspect was Geofence warrants are amongst the many new ways policing has . Id. In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. This Part describes the limited role judges and the public currently play in approving and scrutinizing geofence warrants and how Google responds to them. Additionally, geofence warrants are usually sealed by judges.5858. Valentino-DeVries, supra note 42. to produce an anonymized list of the accounts along with relevant coordinate, timestamp, and source information present during the specified timeframe in one or more areas delineated by law enforcement.7070. Map: Klik Disini. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 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. at *7. ) 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]. Why this time? But a warrant does not need to describe the exact item being seized,160160. 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).