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. Lab. The other paradigmatic cases are Entick v. Carrington (1765) 95 Eng. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." No. 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. MetLife, Inc. v. Fin. The results were stunning. AlphaBay was the largest online drug bazaar in history, run by a technological mastermind who seemed untouchableuntil his tech was turned against him. Steele, 267 U.S. at 503. Rather than waiting for challenges to geofence warrants to percolate and make their way up the court system,180180. Apple told the Times that it doesn't have the ability to furnish law enforcement with data in the same way as Google. Use of this site constitutes acceptance of our User Agreement and Privacy Policy and Cookie Statement and Your California Privacy Rights. 388 U.S. 41 (1967). In fact, it is more precise than either CSLI or GPS.3434. 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. 2. and gives officials fair leeway for enforcing the law in the communitys protection.135135. Courts and legislatures must do a better job of keeping up to ensure that privacy rights are not diminished as technology advancesregardless of how effective those capabilities might be at solving crimes.186186. 99-508, 100 Stat. 18-mj-00169 (W.D. 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. 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. Why is this size of area necessary? 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. Another covered solely a small L-shaped roadway,168168. Meg OConnor, Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder, Phx. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . 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. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. 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. Here, where the government compelled the initial search and directs the step two inquiry, it would be improper to describe the private company as anything other than an agent or instrument of the Government. Id. Maryland v. Garrison, 480 U.S. 79, 84 (1987). New iMac With 'iPad Pro Design Language'. 371 U.S. 471 (1963). Googles (or any other private companys) internal methods for processing geofence warrants, no matter how stringent, cannot make an otherwise unconstitutional warrant sufficiently particular. For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. Id. at 48081. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). 20 M 297, 2020 WL 5491763, at *1, *3 (N.D. Ill. July 8, 2020). Geofence warrants are amongst the many new ways policing has . 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. The warrant must still be sufficiently particular relative to its objective: finding accounts whose location data connects them to the crime. Through the use of geofence warrants (also known as reverse location warrants), federal and state law enforcement officers are routinely requesting that Google search users' accounts to determine who was in a certain geographic area at a particular timeand then to track individuals outside of that initially specific area and time period. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. U.S. Const. 19-cr-00130 (E.D. The information comes in three phases. They're also controversial. See, e.g., Application for Search Warrant (Minn. Hennepin Cnty. Last . United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Clayton Rice, K.C. GRAND RAPIDS, Mich. Geofence warrants are helping law enforcement agencies solve crimes using your cell phone's location data. 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. See, e.g., Susan Freiwald & Stephen Wm. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, C-Span, at 1:36:00 (July 29, 2020), https://www.c-span.org/video/?474236-1/heads-facebook-amazon-apple-google-testify-antitrust-law [https://perma.cc/3MFB-LNH5]. For more applicable recommendations, see Rachel Levinson-Waldman, Brennan Ctr. While New York has proposed the first bill outlawing these warrants,182182. Both iPhone and Android have a one-click button to tap that disables everything. Companies can still resist complying with geofence warrants across the country, be much more transparent about the geofence warrants it receives, provide all affected users with notice, and give users meaningful choice and control over their private data. 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]. . Florida,1313. See, e.g., In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson), No. it relies in large part on police expertise and intuition134134. First, the narrowness of the anonymized list is largely in the hands of private companies, rather than the judiciary or legislature, which is impracticable in the long run. and probable cause for an apartment does not justify a search next door.120120. 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). Google has reportedly received as many as 180 requests in a single week.2525. nor provide the exact location being searched.161161. New York,1616. 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. 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. 1 v. Redding, 557 U.S. 364, 371 (2009) (citations omitted) (quoting Gates, 462 U.S. at 238, 244 n.13); see also Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). See Brewster, supra note 82. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Id. Safford Unified Sch. Geofence warrants seek location data on every person within a specific location over a certain period of time. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. 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. 775, 84245 (2020). 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. Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). This Is How It Works., N.Y. Times (Apr. 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]. at 614. Geofence warrants: How police can use protesters' phones against them. 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). 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. The Reverse Location Search Prohibition Act, A. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Riley, 573 U.S. at 385. Carpenter, 138 S. Ct. at 221920. 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. But a warrant does not need to describe the exact item being seized,160160. 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). 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. P. 41(e)(2). Officials act with probable cause when they have reasonable belief that either an offense is being committed or evidence of a crime is available in the place searched.140140. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of Sensorvault.7979. See, e.g., Search Warrant (Fla. Palm Beach Cnty. Here's Techdirt's coverage of two consecutive rejections of a geofence warrant published in June 2020. See 28 U.S.C. 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 . [-~P?42r%gS(_: See, e.g., Transcript of Oral Argument at 44, City of Ontario v. Quon, 560 U.S. 746 (2010) (No. Id. The best tool to defend that right in Email updates on news, actions, events in your area, and more. L. Rev. and the Supreme Court has maintained that warrants are generally preferred.3030. The government must thus establish probable cause for the time146146. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. Stability Oversight Council, 865 F.3d 661, 668 (D.C. Cir. . Because it is rare to search an individual in the modern age. Cf. Alamat: Jln. L. Rev. See Gates, 462 U.S. at 238. not due to the accompanying documents or post hoc narrowing by law enforcement or a private company.164164. Search Warrant, supra note 5. At this time, fewer pedestrians would be around, and fewer individuals would be captured by the geofence warrant. (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). 2518(1)(c). 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. 19-cr-00130 (E.D. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. . L. Rev. The cellphone dragnet called a geofence warrant harvests the location history generated by users of electronic devices that is stored by Google in a vast repository known as Sensorvault. Geofence warrants , or reverse-location warrants, are a fairly new concept. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. . 789, 79091 (2013). While some explain this practice by pointing to the Stored Communications Act,5959. . 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. Because of their inherently wide scope, geofence warrants can give police access to location data from people who have no connection to criminal activities. Arson, No. Usually, officers identify a suspect or person of interest, then obtain a warrant from a judge to search the persons home or belongings. even if probable cause requirements are relaxed in the electronic context,148148. 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. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 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. serves as a useful example, especially when juxtaposed with In re Search of: Information Stored at Premises Controlled by Google, as Further Described in Attachment A (Pharma I).151151. Id. applies to these warrants. Wisconsin,2121. Either way, judges consider only the warrant immediately before them and may not think through how their proposed tests will be extrapolated.179179. Emblematic of general warrants, these warrants should be highly suspect per se. Brewster, supra note 82. In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. 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]. 2. See Albert Fox Cahn, This Unsettling Practice Turns Your Phone into a Tracking Device for the Government, Fast Co. (Jan. 17, 2020), https://www.fastcompany.com/90452990/this-unsettling-practice-turns-your-phone-into-a-tracking-device-for-the-government [https://perma.cc/A4NR-ZRVQ]. 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. . Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). 1. The size of the area may vary. Third, and finally, Google provides account-identifying information, such as the first names, last names, and email addresses of the users.7676. Time and Place. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. Harris, 568 U.S. at 244; Pringle, 540 U.S. at 371. The Mystery Vehicle at the Heart of Teslas New Master Plan, All the Settings You Should Change on Your New Samsung Phone, This Hacker Tool Can Pinpoint a DJI Drone Operator's Location, Amazons HQ2 Aimed to Show Tech Can Boost Cities. 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. Zachary McCoy went for a bike ride on a Friday in March 2019. 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. . Please check your email for a confirmation link. Global Nav Open Menu Global Nav Close Menu Lamb, supra note 5. See Webster, supra note 5 (describing multiple warrants issued within ten minutes of the request). But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. 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. 1995 (2017). but to Google or an Apple, saying this is a geographic region . See, e.g., In re Search of: Info. The Fourth Amendment provides that warrants must particularly describ[e] the place to be searched, and the persons or things to be seized.158158. at 498. See id. amend. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. See, e.g., Stephen Silver, Police Are Casting a Wide Net into the Deep Pool of Google User Location Data to Solve Crimes, AppleInsider (Mar. 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+$O5VBEUD 2t%BZfJzt:cYM:Tid3t$ 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) Id. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. S. ODea, Number of Android Smartphone Users in the United States from 2014 to 2021, Statista (Mar. Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. 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. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. 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. 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. 20 M 392, 2020 WL 4931052, at *18 (N.D. Ill. Aug. 24, 2020). 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]. It is clear that technology will only continue to evolve. First, Google and other companies may consider these requests compulsions, see Google Amicus Brief, supra note 11, at 13, perhaps because they were already required to search their entire databases, including the newly produced information, at step one, see supra p. 2515. See Valentino-DeVries, supra note 25. We looked for any warrant described as targeting . Many are rendered useless due to Googles slow response time, which can take as long as six months because of Sensorvaults size and the large number of warrants that Google receives.112112. See Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018) (Wireless carriers collect and store CSLI for their own business purposes. . at *5 n.6. Id. 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. Apple, whose software runs mobile devices such as its iPhone, cannot respond to geofence warrants, a company spokesperson said. 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. merely by asking private companies. 3d 37, 42 (D. Mass. In fact, geofence warrants, like most warrants, are almost certainly judicial records, which are the quintessential business of the publics institutions6262. Angela Lang/CNET. It ensures that the search will be carefully tailored to its justifications126126. Geofence warrant requests in Virginia grew from 72 in 2018 to 484 in 2020, . Others ask for lists of all implicated users, their phone numbers, IP addresses, and more.6666. 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. 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. R. Crim. 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. Id. 2016); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.7(b), at 95355 (5th ed. See id. 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. Geofence warrants have become increasingly common over the past decade. Id. In Pharma I, the requested geofence spanned a 100-meter radius area within a densely populated city during several times in the early afternoon, capturing a large number of individuals visiting all sorts of amenities associated with upscale urban living.152152. Some have suggested that geofence warrants should be treated like wiretaps. for Just., Cellphones, Law Enforcement, and the Right to Privacy, https://www.nbcnews.com/news/us-news/google-tracked-his-bike-ride-past-burglarized-home-made-him-n1151761, https://int.nyt.com/data/documenthelper/764-fdlelocationsearch/d448fe5dbad9f5720cd3/optimized/full.pdf, https://www.wral.com/scene-of-a-crime-raleigh-police-search-google-accounts-as-part-of-downtown-fire-probe/17340984, https://www.mprnews.org/story/2019/02/07/google-location-police-search-warrants, https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374, https://www.cnet.com/news/geofence-warrants-how-police-can-use-protesters-phones-against-them, https://www.wired.com/story/creepy-geofence-finds-anyone-near-crime-scene, https://www.forbes.com/sites/thomasbrewster/2018/10/23/feds-are-ordering-google-to-hand-over-a-load-of-innocent-peoples-locations, https://gothamist.com/news/manhattan-da-got-innocent-peoples-google-phone-data-through-a-reverse-location-search-warrant, https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html, https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi, https://www.thedailybeast.com/manhattan-da-cy-vance-made-google-give-up-info-on-everyone-in-area-in-hunt-for-antifa-after-proud-boys-fight, https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html, https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb, https://policies.google.com/terms/information-requests, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257, https://transparency.twitter.com/en/reports/information-requests.html, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report, https://www.uber.com/us/en/about/reports/law-enforcement, https://transparencyreport.google.com/user-data/overview, https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us, https://www.idc.com/promo/smartphone-market-share/os, https://themanifest.com/mobile-apps/popularity-google-maps-trends-navigation-apps-2018, https://www.fastcompany.com/90452990/this-unsettling-practice-turns-your-phone-into-a-tracking-device-for-the-government, https://www.washingtonpost.com/technology/2019/11/21/bank-robber-accuses-police-illegally-using-google-location-data-catch-him, https://www.forbes.com/sites/thomasbrewster/2019/12/11/google-gives-feds-1500-leads-to-arsonist-smartphones-in-unprecedented-geofence-search, https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142, https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-brutality-protests-government, https://techcrunch.com/2021/02/06/minneapolis-protests-geofence-warrant, https://appleinsider.com/articles/18/03/19/police-are-casting-a-wide-net-into-the-deep-pool-of-google-user-location-data-to-solve-crimes, https://www.pewresearch.org/internet/fact-sheet/mobile, https://www.documentcloud.org/documents/3519211-Edina-Police-Google-Search-Warrant-Redacted.html, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf, https://www.c-span.org/video/?474236-1/heads-facebook-amazon-apple-google-testify-antitrust-law, https://www.brennancenter.org/sites/default/files/2019-08/Report_Cell_Surveillance_Privacy.pdf, https://www.cnet.com/news/google-is-giving-data-to-police-based-on-search-keywords-court-docs-show.