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Court Upholds "Geofence" Warrant for Information on Which Phones Were and other states. [T]he liberty of every [person] would be placed in the hands of every petty officer.9090. Geofence Warrants: A Necessary Invasion of Privacy? Google Amicus Brief, supra note 11, at 3. Their support is welcome, especially since. 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]. See Arson, 2020 WL 6343084, at *10; Pharma II, 2020 WL 4931052, at *1617; Pharma I, 2020 WL 5491763, at *6. 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. 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. Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies digital toolbox. Now, Googles transparency report has revealed the scale at which people nationwide may have faced the same violation. . at 48081. See, e.g., Affidavit for Search Warrant, supra note 65, at 23. Lab. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. When probable cause to search a garage does not even extend to a bedroom in the same house,147147. Professor Orin Kerr has argued in favor of an exposure-based approach: [A] search occurs when information from or about the data is exposed to possible human observation. MetLife, Inc. v. Fin. 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. 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. 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. Second, this list is often quite broad. at *1. report. With respect to eavesdropping technology, the Court in Berger noted that law enforcement can obtain only the information for which the warrant was issued.8686. 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 United States v. Jacobsen, 466 U.S. 109, 113 (1984). . 19-cr-00130 (E.D. Representative Kelly Armstrong suggested that geofence warrants should be considered contents within the Electronic Communications Privacy Act of 1986 (ECPA), Pub. 20 M 297, 2020 WL 5491763, at *3 (N.D. Ill. July 8, 2020) (noting that particularity is inversely related to the quality and breadth of probable cause). Geofence warrant requests in Virginia grew from 72 in 2018 to 484 in 2020, . 2011) (Flaum, J., concurring), vacated, 565 U.S. 1189 (2012))). In fact, it is more precise than either CSLI or GPS.3434. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. Warrants can be issued by magistrate judges or state court judges. 1995 (2017). P. 41(b). Both iPhone and Android have a one-click button to tap that disables everything. Around 5 p.m. on May 20, 2019, a man with a gun robbed a bank near Richmond, Virginia, escaping with $195,000. Finds Contact Between Proud Boys Member and Trump Associate Before Riot, N.Y. Times (Mar. 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. What Is A Geofence Warrant? Bank Robbery Accused Snagged Using Google 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 . probable causes exact requisite probability remains elusive. But see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. People v. Weaver, 909 N.E.2d 1195, 1199 (N.Y. 2009), quoted in United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring). See Arson, 2020 WL 6343084, at *5. What Are Geofence Warrants? - The Markup .); United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring); see also Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). In addition, he and his companies must modify their stalkerware to alert victims that their devices have been compromised. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. 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. Thomas Brewster, Google Hands Feds 1,500 Phone Locations in Unprecedented Geofence Search, Forbes (Dec. 11, 2019, 7:45 AM), https://www.forbes.com/sites/thomasbrewster/2019/12/11/google-gives-feds-1500-leads-to-arsonist-smartphones-in-unprecedented-geofence-search [https://perma.cc/PML8-W2UR]. 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. Id. 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. Ng, supra note 9. 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. New figures from Google show a tenfold increase in the requests from law enforcement, which target anyone who happened to be in a given location at a specified time. 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]. Id. First, officers had established the existence of coconspirators using traditional surveillance tools.155155. 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]. In Wilkes v. Wood,9292. "Geofence Warrants Are the Future (and That's a Good Thing)" . In 2018, Google received 982 geofence warrants from law enforcement; in 2020 that number surged to 11,554, according to the most recent data provided by the company. Probable cause ensures that no intrusion at all is justified without a careful prior determination of necessity130130. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. See Skinner v. Ry. Rather than waiting for challenges to geofence warrants to percolate and make their way up the court system,180180. 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. Last . About a month after the robbery, state law enforcement officials obtained a geofence warrant from . 20 M 392, 2020 WL 4931052, at *18 (N.D. Ill. Aug. 24, 2020). Cf. Judicial involvement in the warrant process has long been justified on the basis that judges are neutral and detached5151. In Wong Sun v. United States,115115. See, e.g., In re Search of: Info. Global Nav Open Menu Global Nav Close Menu The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . The court also highlighted the length of time (fifteen to thirty minutes170170. Geofencing: What It Is and How It Works - Lifewire (Who Defends Your Data?) In California, geofence warrant requests leaped from 209 in 2018 to more than 1,900 two years later. Id. 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]. 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. Lab. at 57. The new orders, sometimes called "geofence" warrants, specify an area and a time period, and Google gathers information from Sensorvault about the devices that were there. Since then, it has generally been understood that no warrant can authorize the search of everything or everyone in sight.9696. Groh v. Ramirez, 540 U.S. 551, 561 (2004). If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. (N.Y. 2020). 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. The warrant itself must be particular when presented to a judge for review163163. 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. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. Camara v. Mun. Johnson v. United States, 333 U.S. 10, 14 (1948). Mobile Fact Sheet, Pew Rsch. 'A uniquely dangerous tool': How Google's data can help - POLITICO As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. 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. and the Supreme Court has maintained that warrants are generally preferred.3030. 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. See id. Specific legislative solutions are beyond the scope of this Note. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. 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. Probable cause for a van does not extend to a suitcase located within it,119119. See Stanford, 379 U.S. at 482. from Android usersapproximately 131.2 million Americans4343. Congress must engage in proactive legislation as it has done with other technologies181181. In most cases, the information is in the form of latitude and longitude coordinates derived . 99-508, 100 Stat. Id. This sends a Parts of the fediverse have been in something of an uproar recently over an experimental search service that was under development called (appropriately enough) Searchtodon. Instead, it is enough if the description is such that the officer with a search warrant can with reasonable effort and presumably relying on expertise and experience ascertain and identify the place intended.162162. The warrants constitutional defect its generality is cured by its spatial and temporal restrictions, even though the warrant still names no individualized suspect. Although these warrants have been used since 20162626. The greater the privacy interest, the more stringent the particularity requirement.159159. 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. Search Warrant, supra note 5. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. 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]. McCoy didn't think anything unusual had happened that day. 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. Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). Google Amicus Brief, supra note 11, at 89. IV (emphasis added); see also Fed. 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. All rights reserved. Though Apple, Lyft, Snapchat, and Uber have all received these warrants,4646. and their decisions informed and deliberate.5252. On the other hand, there is a strong argument that the third party doctrine which states that individuals have no reasonable expectations of privacy in information they voluntarily provide to third parties3535. Critics noted that such a bill could penalize anyone attending peaceful demonstrations that, because of someone elses actions, become violent. 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. 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. Geofence warrants enable the government to conduct sweeping searches of cell phone location data for any phone that enters a predefined geographical boundary, or geofence, during limited time frames.2 The rising Few are as fortunate as McCoy, who at least was informed and had the opportunity to block the request in court. 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. Google Amicus Brief, supra note 11, at 1213. Police charged a man with robbery of the bank a year earlier after accessing phone-location data kept by Google. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. 2010); United States v. Reed, 195 F. Appx 815, 822 (10th Cir. Their support is welcome, especially since weve been calling on companies like Google, which have a lot of resources and a lot of lawyers, to do more to resist these kinds of government requests. BTS, Baepsae, on The Most Beautiful Moment in Life Pt. 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. Webster, supra note 5. AlphaBay was the largest online drug bazaar in history, run by a technological mastermind who seemed untouchableuntil his tech was turned against him. Relevant evidence could include the probability of finding location data of coconspirators or potential witnesses. Given that particularity is inextricably tied to geographic and temporal scope, law enforcement should not be able to seek additional information about a narrowed pool of individuals without either obtaining an additional warrant or explicitly delineating this second search in the original warrant. Pharma II, 2020 WL 4931052, at *16; see also Groh, 540 U.S. at 557. What Are Geofence Warrants | thenextweb Carpenter, 138 S. Ct. at 2218. Geofence warrants necessarily involve the very sort of general, exploratory rummaging that the Fourth Amendment was intended to prohibit.105105. it is reasonable to believe that the perpetrators phone data can be found in these records. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. 2. and cases122122. Geofence warrants seek location data on every person within a specific location over a certain period of time. L. Rev. Even assuming that complying with a geofence warrant constitutes a search, there remains a difficult and open threshold question about when the search occurs. Geo-fence warrant - Wikipedia Geofence warrants , or reverse-location warrants, are a fairly new concept. 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). The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. Law Prof Suggests Geofence Warrants Are A Net Gain For The Public, Even Time period should be treated analogously to geographic parameters for purposes of probable cause. L. Rev. Search Warrant Templates | JCDA Warrant Portal 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. Despite Molina having an alibi confirmed by multiple witnesses and the fact that the same location data impossibly placed him in multiple locations at the same time on numerous occasions, the police arrested him, locked him in jail for six days, and informed dozens of media outlets that he was the suspect in a highly publicized murder case.77. . The rise of geofence warrants in Virginia . vao].Vm}EA_lML/6~o,L|hYivQO"8E`S >f?o2 tfl%\* P8EQ|kt`bZTH6 sf? What is a "Geofence" Warrant? - New York City Federal Criminal Lawyer A traditional search warrant for a car or a house or a laptop typically targets a specific person police have probable cause to suspect of a crime. << /Filter /FlateDecode /Length 4987 >> 388 U.S. 41 (1967). United States v. Ross, 456 U.S. 798, 824 (1982). Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). 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]. Much has been said about how courts will extend Carpenter if at all.3939. Googles (or any other private companys) internal methods for processing geofence warrants, no matter how stringent, cannot make an otherwise unconstitutional warrant sufficiently particular. See id. See Google Amicus Brief, supra note 11, at 14. zS ; Products, supra. See, e.g., Search Warrant (Fla. Palm Beach Cnty. 636(a)(1); Fed. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. warrant, "geofence warrants," which are testing the boundaries of the Fourth Amendment. at 221718; Jones, 565 U.S. at 429 (Alito, J., concurring); id. Federal Geofence Search Warrant Decision Emphasizes Need for - ZwillGen 2518(1)(c). While there was likely probable cause to search the businesses where pharmaceuticals were stolen, this probable cause did not extend to other units of the building or neighboring areas.153153. 27012712; Elm, supra note 27, at 9. its text merely requires a warrant issued using the procedures described in the Federal Rules of Criminal Procedure. 25102522, which would require law enforcement to establish necessity. Steele, 267 U.S. at 503. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. at *5. 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. The other paradigmatic cases are Entick v. Carrington (1765) 95 Eng. Cellphone dragnet used to find bank robbery suspect was [-~P?42r%gS(_: The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Cond Nast. Schuppe, supra note 1. The amount of behind-the-scenes cooperation between Apple-Facebook-Google-et-al and law enforcement would boggle the . 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. Geofence warrants are amongst the many new ways policing has . Google and other private companies act[] as. Id. Jorge Molina, for example, was wrongfully arrested for murder and was told only when interrogated that his phone without a doubt placed him at the crime scene.66. Geofence warrants are popular. The government must thus establish probable cause for the time146146. . 84/ S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also supports. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) Google hit with more than 20,000 geofence warrants from 2018 to 2020 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. Though admittedly an open question, Google has advocated that they are,2828. Spinelli v. United States, 393 U.S. 410, 419 (1969); see also United States v. Leon, 468 U.S. 897, 914 (1984); Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. Allen, 625 F.3d 830, 840 (5th Cir. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. Geofence Warrants and the Fourth Amendment - Harvard Law Review In Berger v. New York,8484. An Explosion in Geofence Warrants Threatens Privacy Across the US Ninety-six percent of Americans own cell phones. Government practice further suggests that the search begins when companies look through their entire databases. . 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. In the geofence context, the relevant consideration is the latter, and, as discussed, a geofence warrant searches two places: (1) the third partys location history records and (2) the time and geographic area delineated by the geofence warrant. See Google Amicus Brief, supra note 11, at 5. including Calendar, Chrome, Drive, Gmail, Maps, and YouTube, among others.4545. 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. Each of these companies regularly share transparency reports detailing how often they hand over user info to law enforcement, but Google is the first to separately detail geofence warrants. 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. According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020. Id. 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. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. Geofencing Warrants - North Carolina Criminal Law March 15, 2022. Which UI design tool should I use in 2020? Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. 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. 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. Eighty-one percent have smartphones. Emblematic of general warrants, these warrants should be highly suspect per se. The conversation has started and must continue in Congress.183183. This understanding is consistent only with treating step one as the search.8888. 14, 2018). Modern technology, in removing most practical barriers to surveillance, has ensured that this statement no longer holds. Courts have already shown great concern over technologies such as physical tracking devices,9797. Geofence warrants are sometimes referred to as reverse location warrants. Va. June 14, 2019). are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. 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. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Because it is rare to search an individual in the modern age. 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. 13, 2019), https://nyti.ms/2DnN7KT [https://perma.cc/P5N3-4HSD]. Carpenter, 138 S. Ct. at 221920. This type of devastating scheme ensnares victims and takes them for all theyre worthand the threat is only growing. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. See, e.g., In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson), No.