The three stage warrant process is based on an agreement between Google and the Department of Justice's Computer Crime and Intellectual . 2 (Big Hit Ent. In 2020, a warrant for users who had searched [for the victims address] close in time to the arson was granted, and Google responded by providing IP addresses of responsive users.185185. Id. Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. 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. Surveillance footage showed that the perpetrator held a cell phone to his ear before he entered the bank. See Berger v. New York, 388 U.S. 41, 56 (1967). 3d 648, 653 (N.D. Ill. 2019). 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. Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. Just this week, Kenosha lawmakers debated a bill that would make attending a riot a felony. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. 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. . 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. Geofencing with iPhone. 'A uniquely dangerous tool': How Google's data can help - POLITICO Geofence warrants represent both a continuation and an evolution of this relationship. 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. In fact, geofence warrants, like most warrants, are almost certainly judicial records, which are the quintessential business of the publics institutions6262. Namun tidak seperti beberapa . Id. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). See United States v. Jones, 565 U.S. 400, 402 (2012); United States v. Karo, 468 U.S. 705, 709, 717 (1984). 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 How not to get caught in law-enforcement geofence requests United States v. Chatrie, 590 F. Supp. 3d 901 - Casetext 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. In 2017, Minnesota officers applied for a warrant asking Google for [a]ny/all user or subscriber information related to the Google searches of the names of various individuals with the first name Douglas.184184. Mar. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. Wilkes, 98 Eng. 775, 84245 (2020). Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. See Skinner v. Ry. 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. 1. iBox Service. See Google Amicus Brief, supra note 11, at 10; see also Carpenter, 138 S. Ct. at 2218 (recognizing that high technological precision increases the likelihood that a search exists); United States v. Beverly, 943 F.3d 225, 230 n.2 (5th Cir. it relies in large part on police expertise and intuition134134. 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). 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. Though some initial warrants provide explicitly for this extra request,7373. While it is true that not everybody constantly carries their cell phone, and a cell phone is not always sending location information to Google,143143. The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." See id. It would seem inconsistent, therefore, to argue that there is a high probability that perpetrators do not have their phones. . Webster, supra note 5. Elm, supra note 27, at 13; see also 18 U.S.C. 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. Id. 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. courts have suggested as much,2929. 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. .). (1763) 98 Eng. 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. amend. They sometimes approve warrants in a few minutes5555. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. and gives officials fair leeway for enforcing the law in the communitys protection.135135. Each one of these orders could sweep in hundreds or . Id. In subsequent decisions, the Court reinforced the notion that probable cause for a single physical location cannot be widely extended to nearby places. This Is How It Works., N.Y. Times (Apr. If Google complies, it will supply a list of anonymized data about the devices in the area: GPS coordinates, the time stamps of when they were in the area, and an anonymized identifier, known as a reverse location obfuscation identifier, or RLOI. between midnight and 3:00 a.m.), which further limited the warrants scope.171171. L. Rev. Steele, 267 U.S. at 503. On the iPhone it's called "Location Services". Second, law enforcement reviews the anonymized list and identifies devices it is interested in.7171. Though Apple, Lyft, Snapchat, and Uber have all received these warrants,4646. However, wiretaps predict future rather than past criminal conduct, see United States v. Grubbs, 547 U.S. 90, 95 (2006), and thus raise different concerns with respect to probable cause and particularity. Apple tech uses geofences, crowdsourced data to pinpoint cell network Minnesota,1515. 347, 37388. Florida,1313. The order will indicate a small area where the incident occurred and a window of time when it happened. First, officers had established the existence of coconspirators using traditional surveillance tools.155155. 18-mj-00169 (W.D. Servers Controlled by Google, Inc., No. . Va. judge rejects 'geofence' search warrant - Washington Post Google Amicus Brief, supra note 11, at 89. Access to the storehouse by law enforcement continues to generate controversy because these warrants vacuum the location . Google Amicus Brief, supra note 11, at 3. 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. The conversation has started and must continue in Congress.183183. Ct., 387 U.S. 523, 537 (1967); see also Orin S. Kerr, An Economic Understanding of Search and Seizure Law, 164 U. Pa. L. Rev. Stored at Premises Controlled by Google (Pharma II), No. [-~P?42r%gS(_: 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. nor provide the exact location being searched.161161. July 14, 2020). The Chatrie opinion suggests it would approve a geofence warrant process in which a magistrate or court got to make a probable cause determination before geofence data of the likely suspect is de . See Arson, 2020 WL 6343084, at *8. 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. 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. Emily Glazer & Patience Haggin, Political Groups Track Protesters Cellphone Data, Wall St. J. See Carpenter v. United States, 138 S. Ct. 2206, 2211, 2217 (2018). and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. New York,1616. With geofence warrants, police start with the time and location that a suspected crime took place, then request data from Google for the devices surrounding that location at that time, usually within a one- to two-hour window. Texas,1818. Virginia,1919. In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. at *5 n.6. Katie Benner, Alan Feuer & Adam Goldman, F.B.I. 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. 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. 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. The Arson court first emphasized the small scope of the areas implicated. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. 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. 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. Stability Oversight Council, 865 F.3d 661, 668 (D.C. Cir. 388 U.S. 41 (1967). See Maryland v. Garrison, 480 U.S. 79, 85 (1987). 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. See Valentino-DeVries, supra note 25. 19. Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. 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. 561 (2009). 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 . 20 M 392, 2020 WL 4931052, at *18 (N.D. Ill. Aug. 24, 2020). at 48081. Apple, Uber, and Snapchat have . The rise of geofence warrants in Virginia . 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. Sess. and the time period at issue (the wee hours of the morning. With permission from a judge, they allow law enforcement to obtain anonymized data from Google from almost any device that was in a certain geographic . MetLife, Inc. v. Fin. The bill would also ban keyword searches, a similarly criticized investigative tactic in which Google hands over data based on what someone searched for. Modern technology, in removing most practical barriers to surveillance, has ensured that this statement no longer holds. installed on 2.5 billion active devices, is more widespread than Apple's iOS. Steagald v. United States, 451 U.S. 204, 220 (1981). 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.). Recently, users filed a class action against Google on these grounds. Emblematic of general warrants, these warrants should be highly suspect per se. Arson, No. . They're also controversial. zS The amount of behind-the-scenes cooperation between Apple-Facebook-Google-et-al and law enforcement would boggle the . 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 . 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. Geofencing with iPhone - Apple Community 2019), or should readily be extended to other technologies, see, e.g., Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521, 527 (7th Cir. Google has reportedly received as many as 180 requests in a single week.2525. Geofence Warrants and the Fourth Amendment - Harvard Law Review Location data is inextricably tied to the freedoms of speech and association. Its closest competitor is Waze, which is also owned by Google. See Berger v. New York, 388 U.S. 41, 5153 (1967). Law enforcement investigators have also made geofence requests to tech companies including Apple, Snapchat and Uber. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. See United States v. Patrick, 842 F.3d 540, 54245 (7th Cir. Pharma II, No. 'Geofence Warrant' Unconstitutional, Judge Rules in Virginia agent[s] of the government not only when they produce the final list of names to law enforcement but also when they search their entire databases in order to produce these names.8181. Here's What You Need to Know about Battery Health Management in Catalina. But to the extent that law enforcement has discretion, that leeway exists only after it is provided with a narrowed list of accounts step two in Googles framework. from Android usersapproximately 131.2 million Americans4343. George Joseph & WNYC Staff, Manhattan DA Got Innocent Peoples Google Phone Data Through a Reverse Location Search Warrant, Gothamist (Aug. 13, 2019, 5:38 PM), https://gothamist.com/news/manhattan-da-got-innocent-peoples-google-phone-data-through-a-reverse-location-search-warrant [https://perma.cc/RH9K-4BJZ]. Va. Dec. 23, 2019) [hereinafter Google Amicus Brief]. Alamat: Jln. Brewster, supra note 14. The fact that geofence results indicate only proximity to a crime, not whether someone broke the law or is even suspected of wrongdoing, has also alarmed legal scholars, who worry it could enable government searches of people without real justification. See, e.g., Transcript of Oral Argument at 44, City of Ontario v. Quon, 560 U.S. 746 (2010) (No. There is, additionally, the age-old critique that judges do not understand the technologies they confront. Though admittedly an open question, Google has advocated that they are,2828. 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. In re Leopold to Unseal Certain Elec. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. 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. Id. Raleigh Police Searched Google Accounts as Part of Downtown Fire Probe, WRAL.com (July 13, 2018, 2:07 PM), https://www.wral.com/scene-of-a-crime-raleigh-police-search-google-accounts-as-part-of-downtown-fire-probe/17340984 [https://perma.cc/8KDX-TCU5] (explaining that Google could not disclose its search for ninety days); Tony Webster, How Did the Police Know You Were Near a Crime Scene? 531, 551 (2005) (emphasis added). See, e.g., Application for Search Warrant (Minn. Hennepin Cnty. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Maryland v. Garrison, 480 U.S. 79, 84 (1987). 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. But they can do even more than support legislation in one state. Thousands of Geofence Warrants Appear to Be Missing from a California . and other states. While traditional court orders permit searches related to known suspects, geofence warrants are issued specifically because a suspect cannot be identified.1010. The location data typically comes from Google, who collects data from their Android phone . Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . Because the search area was broad and thus vague, a warrant would merely invite[] the officers to roam the length of [the street]117117. Cf. While some explain this practice by pointing to the Stored Communications Act,5959. A secondary viewing method can be used via the following link: Dropbox Files. . See Brewster, supra note 82. 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 step one, Google must search all of its location information, including the additional information it produces during the back-and-forth at step two. Camara v. Mun. warrant, "geofence warrants," which are testing the boundaries of the Fourth Amendment. Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. United States v. Ross, 456 U.S. 798, 824 (1982). at *8. The geofence warrants served on Google shortly after the riot remained sealed. As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. Google says geofence warrants make up one-quarter of all US demands at *5. 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. Id. 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. Riley v. California, 573 U.S. 373, 385 (2014). The results were stunning. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. Yet there is little to suggest that courts will hold geofence warrants categorically unconstitutional any time soon, despite the Courts recognition that intrusive technologies should trigger higher judicial scrutiny.177177. 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. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Jeffrey S. Sutton, 51 Imperfect Solutions, The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Rachel Levinson-Waldman, Brennan Ctr. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172.