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. . Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. Geofence warrants rely on the vast trove of location data that Google collects4242. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". 19. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). Id. 18 U.S.C. Here's another rejection covered by Techdirt this one arriving nearly a year ago . See id. at *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. Geofences are a tool for tracking location data linked to specific Android devices, or any device with an app linked to Google Maps. 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. New Times (Jan. 16, 2020, 9:11 AM), https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374 [https://perma.cc/6RQD-JWYW]. It is the essential source of information and ideas that make sense of a world in constant transformation. 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. Execs. Assn, 489 U.S. 602, 615 (1989). but to Google or an Apple, saying this is a geographic region . When probable cause to search a garage does not even extend to a bedroom in the same house,147147. Because it is rare to search an individual in the modern age. 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. Surveillance footage showed that the perpetrator held a cell phone to his ear before he entered the bank. If geofence warrants are constitutional at all, it must be because courts understand geofence searches more narrowly: as the production of data directly responsive to the warrant, step two of Googles framework. Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. Geofence warrant requests in Virginia grew from 72 in 2018 to 484 in 2020, . 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. Relevant evidence could include the probability of finding location data of coconspirators or potential witnesses. 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. Google has reportedly received as many as 180 requests in a single week.2525. at 48081. 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]. 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. 18-mj-00169 (W.D. The warrant was thus sufficiently particular. See Arson, 2020 WL 6343084, at *5. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020) (rejecting the governments argument that Googles framework curtail[s] or define[s] the agents discretion in a[] meaningful way); see also Arson, 2020 WL 6343084, at *10; Pharma II, No. Groh v. Ramirez, 540 U.S. 551, 561 (2004). 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. 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. 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 Court found no probable cause to search thirty blocks to identify a single laundromat where heroin was probably being sold.116116. Many geofence warrants do not lead to arrests.111111. This Is How It Works., N.Y. Times (Apr. Rep. 1075 (KB). Law enforcement gets a warrant from a judge, then serves it to Google or Apple. The conversation has started and must continue in Congress.183183. stream United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Instead, many warrant applications provide only the latitude and longitude of the search areas boundaries.5757. Representative Kelly Armstrong suggested that geofence warrants should be considered contents within the Electronic Communications Privacy Act of 1986 (ECPA), Pub. The order will indicate a small area where the incident occurred and a window of time when it happened. Redding, 557 U.S. at 370; see also Harris, 568 U.S. at 243; Ornelas v. United States, 517 U.S. 690, 696 (1996); Brown, 460 U.S. at 742 (plurality opinion); Brinegar, 338 U.S. at 17576. By contrast, geofence warrants require private companies to actively search through their entire databases to provide new and refined datasets in response to a warrant. 20-cv-4688 (N.D. Cal. New York,1616. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020). 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]. Government practice further suggests that the search begins when companies look through their entire databases. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172. about cell phone usage. Geofence and reverse keyword warrants completely circumvent the limits set by the Fourth Amendment. A general warrant is simply an egregious example of a warrant that is too broad in relation to the object of the search and the places in which there is probable cause to believe that it may be found.128128. When law enforcement wants information associated with a particular location, rather than a particular user, it can request tower dumps download[s] of information on all the devices that connected to a particular cell site during a particular interval. Carpenter, 138 S. Ct. at 2220; see also United States v. Adkinson, 916 F.3d 605, 608 (7th Cir. . 2016) (en banc). 2012). Id. 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). are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. See Carpenter v. United States, 138 S. Ct. 2206, 2211, 2217 (2018). 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. Steele, 267 U.S. at 503. They sometimes approve warrants in a few minutes5555. 19-cr-00130 (E.D. In the probable cause context, time should be treated as just another axis like latitude and longitude along which the scope of a warrant can be adjusted. . See Illinois v. Gates, 462 U.S. 213, 238 (1983). 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 Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. Brewster, supra note 82. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. (May 31, 2020). The size of the area may vary. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications). 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. A warrant requesting accounts located within the geographical area bordered to the north at 26.947300, -80.357595, to the east at 26.94672, -80.356715, to the south at 26.946227, -80.357316, and to the west at 26.946762, -80.358073, for example, does not illustrate the scope of the requested search. In Berger v. New York,8484. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. In a long-awaited decision, a federal court in Virginia ruled in United States v. Chatrie that a geofence warrant violated the Fourth Amendment, but that the fruits of the unconstitutional search could nevertheless be used against the defendant under the good faith exception to the warrant requirement. 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 . Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. Of the courts that have considered these warrants, most have implicitly treated the search as the point when the private company first provides law enforcement with the data requested step two in Googles framework with no explanation why.7777. Id. 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. How to Encrypt any File, Folder, or Drive on Your System, The Hunt for the Dark Webs Biggest Kingpin, Part 1: The Shadow. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. . Dist. Mar. While some explain this practice by pointing to the Stored Communications Act,5959. Last . Google uses its stored location data to personalize advertisements, estimate traffic times, report on how busy restaurants are, and more. Pharma II, No. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 2703(a), (b)(A), (c)(A). MetLife, Inc. v. Fin. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. at 48081. at *5 n.6. Snapchat and Apple, too. Sixty-seven percent of smartphone users who use navigation apps prefer Google Maps. Ryan Nakashima, AP Exclusive: Google Tracks Your Movements, Like It or Not, AP News (Aug. 13, 2018), https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb [https://perma.cc/2UUM-PBV6]. Geofence warrants are warrants used by police to tech companies for information about devices in specific areas. 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.