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Va. Dec. 23, 2019) [hereinafter Google Amicus Brief]. 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. A search for location history spanning several blocks, for example, may cabin officer discretion if only one or two people will be found, establishing particularity, but could still fail if there is no probable cause to search one of the several blocks, buildings, or units encompassed. Geofence warrants represent both a continuation and an evolution of this relationship. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. amend. Geofence warrants necessarily involve the very sort of general, exploratory rummaging that the Fourth Amendment was intended to prohibit.105105. Sometimes, it will request additional location information associated with specific devices in order to eliminate false positives or otherwise determine whether that device is actually relevant to the investigation.7272. Brewster, supra note 82. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. S. ODea, Number of Android Smartphone Users in the United States from 2014 to 2021, Statista (Mar. and the Drug Enforcement Administration was given broad authority to conduct covert surveillance of protesters.108108. Here's another rejection covered by Techdirt this one arriving nearly a year ago . Minnesota,1515. Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. To revist this article, visit My Profile, then View saved stories. MetLife, Inc. v. Fin. There has been a dramatic increase in the use of geofence warrants by law enforcement in the U.S. Across all 50 states, geofence requests to Google increased from 941 in 2018 to 11,033 in 2020, accounting for a significant portion of all requests the company receives from law enforcement. at 1245, is constitutionally suspect). AlphaBay was the largest online drug bazaar in history, run by a technological mastermind who seemed untouchableuntil his tech was turned against him. 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). See id. . That is because Apple doesn't store location data in a format . 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]. Though certainly a lower standard than necessary to support a conviction,137137. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). P. 41(e)(2). 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. The Court has recognized that when these rights are at issue, the warrant requirements must be accorded the most scrupulous exactitude. Stanford v. Texas, 379 U.S. 476, 485 (1965); see id. The other paradigmatic cases are Entick v. Carrington (1765) 95 Eng. (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). 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 and anyone who visits a Google-based application or website from their phone,4444. See Berger v. New York, 388 U.S. 41, 57 (1967). 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. 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. They sometimes approve warrants in a few minutes5555. 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. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. 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. 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. Thanks, you're awesome! 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. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. applies to these warrants. Law enforcement agencies frequently require Google to provide user data while forbidding it from notifying users that it has revealed or plans to reveal their data.55. & Poly 211, 21315 (2006). Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. Berger v. New York, 388 U.S. 41, 62 (1967); see also Lopez v. United States, 373 U.S. 427, 464 (1963) (Brennan, J., dissenting). The memorandum was obtained by journalists at BuzzFeed News. the interstate nature of location data requires federal intervention for effective legislation. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). . A single geofence request could include data from hundreds of bystanders. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. Apple told the Times that it doesn't have the ability to furnish law enforcement with data in the same way as Google. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. Facebook has also publicly denounced the use of geofence warrants, with a spokesperson outwardly supporting the bill. Lamb, supra note 5. The warrant was thus sufficiently particular. at *1. Cops have discovered Google houses plenty of location data. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". All rights reserved. 20-cv-4688 (N.D. Cal. (Who Defends Your Data?) 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. (1763) 98 Eng. 3d 37, 42 (D. Mass. 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. Time and place restrictions are thus crucial to the particularity analysis because they narrow the list of names that companies provide law enforcement initially, thereby limiting the number of individuals whose data law enforcement can sift through, analyze, and ultimately deanonymize.166166. Few offer information regarding the scope of the geographical area to be searched in a unit of measurement most people would understand, like blocks or street parameters. The warrant itself must be particular when presented to a judge for review163163. Step twos back-and-forth reinforces the possibility that a companys entire database could be retrieved and exposed to law enforcement from nonobservable form to observable form. Id. By submitting "geofence" warrants, police are able to look at which phones . Google handed over the GPS coordinates and data, device data, device IDs, and time stamps for anyone at the library for a period of two hours; at the museum, for 25 minutes. It is unclear whether the data collected is stored indefinitely, see Webster, supra note 5 (suggesting that it is), but there are strong constitutional arguments that it should not be, see United States v. Ganias, 824 F.3d 199, 21518 (2d Cir. 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]. . While probable cause forces the government to prove that the need to search is greater than any invasion of privacy,133133. 20 M 297, 2020 WL 5491763, at *1, *3 (N.D. Ill. July 8, 2020). . Every DJI quadcopter broadcasts its operator's position via radiounencrypted. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. 2. See, e.g., Steele v. United States, 267 U.S. 498, 50405 (1925) (concluding, despite the fact that the cases of whiskey seized may not have been the exact cases that officials saw being delivered and that served as the basis of the warrant, that particularity was satisfied). % 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. 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. Harris, 568 U.S. at 244; Pringle, 540 U.S. at 371. and should, by default, be available to ensure the transparency of the courts decisionmaking process.6363. During the protests in response to the murder of George Floyd, for example, companies collected and sold protesters phone data to political groups for election-related use,107107. Wilkes, 98 Eng. at *7. ) 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. Id. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. . Specific legislative solutions are beyond the scope of this Note. Apple and Facebook remained resolute in their vow not to build back doors into their products for law enforcement to potentially view the private communications of . at 498. 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 . W_]gw2OcZ)~kUid]-|b(}O&7P;U {I]Bp.0'-.%{8YorNbVdg_bYg#. It may also include addresses, phone numbers, birth dates, social security numbers, payment information, and IP addresses, among other information.174174. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. 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. 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. Brewster, supra note 14. courts have suggested as much,2929. Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. granting law enforcement access to thousands of innocent individuals data without a known public safety benefit.2323. Implicit in this understanding is the idea that what is searched by the warrant is only the data in the location history database associated with the particular place and time for which information is requested. These reverse warrants have serious implications for civil liberties. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. See, e.g., Search Warrant, supra note 5. In fact, it is more precise than either CSLI or GPS.3434. 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). While all geofence warrants provide a search radius and time period, they otherwise vary greatly. New iMac With 'iPad Pro Design Language'. The same principle should apply to geofence warrants. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . 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]. L. Rev. Ever-expanding cloud storage presents more risks than you might think. and the Supreme Court has maintained that warrants are generally preferred.3030. .); 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.). . Probable cause ensures that no intrusion at all is justified without a careful prior determination of necessity130130. 371 U.S. 471 (1963). The location data typically comes from Google, who collects data from their Android phone . Yet the scope of a geofence search is larger than almost any physical search. 2018); United States v. Diggs, 385 F. Supp. 14, 2018). Surveillance footage showed that the perpetrator held a cell phone to his ear before he entered the bank. 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. In Ohio, requests rose from seven to 400 in that same time. Google Amicus Brief, supra note 11, at 12. about cell phone usage. are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. Schuppe, supra note 1. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. Now, Googles transparency report has revealed the scale at which people nationwide may have faced the same violation. . Prosecutors declined to comment. See Valentino-DeVries, supra note 25. 2016); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.7(b), at 95355 (5th ed. Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). 2018); United States v. Saemisch, 371 F. Supp. Geofence warrants rely on the vast trove of location data that Google collects4242. Google has reportedly received as many as 180 requests in a single week.2525. 2020) (quoting Corrected Brief for Appellee at 28, Leopold, 964 F.3d 1121 (No. 1996)). 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]. 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. The trick is knowing which thing to disable. Id. Id. Enter a serial number to review your eligibility for support and extended coverage. 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 United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring); see also State v. Brown, 202 A.3d 1003, 1012 n.8 (Conn. 2019); Commonwealth v. Estabrook, 38 N.E.3d 231, 237 (Mass. Location data is inextricably tied to the freedoms of speech and association. In order for step twos back-and-forth to be lawful, therefore, the geofence warrant must have authorized these further searches. 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. 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. . R. Crim. Android controls around eighty-five percent of the global smartphone market. 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. Some ask for an initial anonymized list of accounts, which law enforcement will whittle down and eventually deanonymize.6565. Rep. 1075 (KB). But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172.