Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. P. 41(b). 18-5276)). 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. See Florida v. Jardines, 569 U.S. 1, 6 (2013) ([T]he home is first among equals.); Kyllo v. United States, 533 U.S. 27, 40 (2001) (We have said that the Fourth Amendment draws a firm line at the entrance to the house . Just this week, Kenosha lawmakers debated a bill that would make attending a riot a felony. Android controls around eighty-five percent of the global smartphone market. No available New Jersey decision analyzes geofence warrants. Why wouldn't just one individuals phone work? he says. . and anyone who visits a Google-based application or website from their phone,4444. But they can do even more than support legislation in one state. warrant, "geofence warrants," which are testing the boundaries of the Fourth Amendment. it relies in large part on police expertise and intuition134134. As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. Ninety-six percent of Americans own cell phones. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. Valentino-DeVries, supra note 25. After judicial approval, a geofence warrant is issued to a private company. and the time period at issue (the wee hours of the morning. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. 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. 775, 84245 (2020). See, e.g., Albert Fox Cahn, Manhattan DA Made Google Give Up Information on Everyone in Area as They Hunted for Antifa, Daily Beast (Aug. 15, 2019, 4:35 PM), 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://perma.cc/5BKP-EFJD]; Lamb, supra note 5. Berger, 388 U.S. at 56 ([T]he indiscriminate use of such devices in law enforcement[] . See Berger v. New York, 388 U.S. 41, 56 (1967). IV (emphasis added); see also Fed. from Android usersapproximately 131.2 million Americans4343. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. Probable cause ensures that no intrusion at all is justified without a careful prior determination of necessity130130. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Specific legislative solutions are beyond the scope of this Note. See Google Amicus Brief, supra note 11, at 1314. See United States v. Patrick, 842 F.3d 540, 54245 (7th Cir. 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. They also vary in the evidence that they request. In Ohio, requests rose from seven to 400 in that same time. In contrast, law enforcement in Arson explained why all the areas included in the geofence could potentially reveal evidence of witnesses or coconspirators. 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). To work, those people must be using cellphones or other electronic devices that have . We looked for any warrant described as targeting . 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]. See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). 2017). 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. Geofence warrants necessarily involve the very sort of general, exploratory rummaging that the Fourth Amendment was intended to prohibit.105105. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. See, e.g., Transcript of Oral Argument at 44, City of Ontario v. Quon, 560 U.S. 746 (2010) (No. Johnson v. United States, 333 U.S. 10, 14 (1948). Geofencing is used in advanced location-based services to determine when a device being tracked is within or has exited a geographic boundary. probable causes exact requisite probability remains elusive. Steagald v. United States, 451 U.S. 204, 220 (1981). 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. On the one hand, the Court has recognized that, in certain circumstances, individuals have reasonable expectations of privacy in their location information.3131. It should be a last resort, because its so invasive.. 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. In 2019, a single warrant in connection with an arson resulted in nearly 1,500 device identifiers being sent to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. at *5 n.6. United States v. Ross, 456 U.S. 798, 824 (1982). While this Note focuses primarily on federal law, its application extends to state law and carries particular relevance for the (at least) eighteen states that have largely applied Fourth Amendment law to state issues. 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. In other words, because probable cause ensures that any intrusion on privacy is justified by necessity, it considers whether there is a probability that evidence of illegal activity will be found in a specific area.149149. 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 there is nothing cursory about step two. The three stage warrant process is based on an agreement between Google and the Department of Justice's Computer Crime and Intellectual . In most cases, the information is in the form of latitude and longitude coordinates derived . I believe that iPhones that have Google apps like Gmail or Youtube running in the foreground have the capability to report location to Google. United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). They sometimes approve warrants in a few minutes5555. Johnson, 333 U.S. at 14; see also McDonald v. United States, 335 U.S. 451, 456 (1948) (Power is a heady thing; and history shows that the police acting on their own cannot be trusted.); Lefkowitz, 285 U.S. at 464 (preferring not to rel[y] upon the caution and sagacity of petty officers while acting under the excitement that attends the capture of persons accused of crime). to ensure that law enforcement across the country does not continue to abuse geofence warrants. 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+$O5VBEUD 2t%BZfJzt:cYM:Tid3t$ wiretaps,9898. 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. and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. . Why wouldn't a more narrow setting work? The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. . Meg OConnor, Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder, Phx. L. Rev. Just., Summer 2020, at 7. Recently, users filed a class action against Google on these grounds. 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). 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. Googles actions in all three parts of its framework are thus conducted in response to legal compulsion and with the participation or knowledge of [a] governmental official.8080. Geofence warrants , or reverse-location warrants, are a fairly new concept. 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). . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. A person does notand should notsurrender all Fourth Amendment protection by venturing into the public sphere.187187. The three tech giants have issued a public statement through a trade organization,Reform Government Surveillance,'' that they will support a bill before the New York State legislature. 371 U.S. 471 (1963). To assess only the former would gut the Fourth Amendments warrant requirements. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). it is reasonable to believe that the perpetrators phone data can be found in these records. 27 27. BTS, Baepsae, on The Most Beautiful Moment in Life Pt. (May 31, 2020). The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . Why this time? 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). Fifth Circuit Delivers a New Law Enforcement Functions Test for Identifying Government Actors. . Instead, with geofence warrants, they draw a box on a map, and compel the company to identify every digital device within that drawn boundary during a given time period. 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]. Time and Place. For months, Zachary McCoy tracked the distance of his bike rides around his neighborhood in Gainesville, Florida, using his RunKeeper app.11. zS Google has reportedly received as many as 180 requests in a single week.2525. They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. Some ask for an initial anonymized list of accounts, which law enforcement will whittle down and eventually deanonymize.6565. Geofence warrants are sometimes referred to as reverse location warrants. Geofence warrants represent both a continuation and an evolution of this relationship. The geofence warrants served on Google shortly after the riot remained sealed. Minnesota,1515. Geofence Warrants On The Rise. Safford Unified Sch. 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. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . P. 41(e)(2). 19. Instead, many warrant applications provide only the latitude and longitude of the search areas boundaries.5757. Florida,1313. 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.). 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. 3d 648, 653 (N.D. Ill. 2019). 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. 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. Berger, 388 U.S. at 57. Id. EFF Backs California Bill to Protect People Seeking Abortion and Gender-Affirming Care from Dragnet Digital Surveillance, Stalkerware Maker Fined $410k and Compelled to Notify Victims, Civil Society Organizations Call on theHouse Of Lords to ProtectPrivate Messaging in the Online Safety Bill, Brazil's Telecom Operators Made Strides and Had Shortcomings in Internet Lab's New Report on User Privacy Practices, EFF and Partners Call Out Threats to Free Expression in Draft Text as UN Cybersecurity Treaty Negotiations Resume, Global Cybercrime and Government Access to User Data Across Borders: 2022 in Review, Users Worldwide Said "Stop Scanning Us": 2022 in Review. 8$6m7]?{`p|}IZ%pVcn!9c69?+9T:lDhs%fFfA# a$@-qyKmE3 /6"E3J3Lk;Np. It would seem inconsistent, therefore, to argue that there is a high probability that perpetrators do not have their phones. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 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. 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]. 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. They are paradigmatic dragnets that run[] against everyone.104104. See Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. . Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. Geofence warrants seek location data on every person within a specific location over a certain period of time. The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. 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. 2d 1, 34 (D.D.C. 2703(a), (b)(A), (c)(A). 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. 138 S. Ct. 2206. the information retrieved in response to a geofence warrant is pervasive, detailed, revealing, retroactive, and cheap.3333. 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. (N.Y. 2020). In addition, he and his companies must modify their stalkerware to alert victims that their devices have been compromised. 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. . 19, 2018), 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://perma.cc/42VM-VUSD] (reporting that only one in four geofence warrants resulted in an arrest by the Raleigh Police Department). Servers Controlled by Google, Inc., No. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. Id. The government must thus establish probable cause for the time146146. . See Skinner v. Ry. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . Rep. at 496. on the basis that it did not specify the items and suspects to be searched, thereby giving overly broad discretion to law enforcement, a result totally subversive of the liberty of the [search] subject.9494. For more applicable recommendations, see Rachel Levinson-Waldman, Brennan Ctr. No. Its closest competitor is Waze, which is also owned by Google. Ct. Feb. 1, 2017), https://www.documentcloud.org/documents/3519211-Edina-Police-Google-Search-Warrant-Redacted.html [https://perma.cc/7SCA-GGPJ] (requesting this information of suspects accounts along with their Google searches). The overwhelming majority of the warrants were issued by courts to state and local law enforcement. See Stanford, 379 U.S. at 482. The trick is knowing which thing to disable. The Fourth Amendment provides that warrants must particularly describ[e] the place to be searched, and the persons or things to be seized.158158. Katie Benner, Alan Feuer & Adam Goldman, F.B.I. Carpenter v. United States, 138 S. Ct. 2206, 221718 (2018); Riley v. California, 573 U.S. 373, 38586 (2014); see, e.g., Arson, No. The memorandum was obtained by journalists at BuzzFeed News. all of which at least require law enforcement to identify a specific suspect or target device. Wilkes, 98 Eng. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. S8183, 20192020 Leg. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. Lab. 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. By submitting "geofence" warrants, police are able to look at which phones . . Now, a group of researchers has learned to decode those coordinates. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . Jake Laperruque, Project on Government Oversight, Torn between the latest phones? See Valentino-DeVries, supra note 25. the Court found no probable cause to search thirty blocks to identify a single laundromat where heroin was probably being sold.116116. 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. 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]. As a result, geofence warrants are general warrants and should be unconstitutional per se. Law enforcement . Memorandum from Timothy J. Shea, Acting Admr, Drug Enft Admin., to Deputy Atty Gen., Dept of Just. Brewster, supra note 14. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. . As . If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. Brinegar, 338 U.S. at 176; see also Heien v. North Carolina, 574 U.S. 54, 60 (2014) (To be reasonable is not to be perfect . 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. Carpenter, 138 S. Ct. at 221920. In Wong Sun v. United States,115115. Id. vao].Vm}EA_lML/6~o,L|hYivQO"8E`S >f?o2 tfl%\* P8EQ|kt`bZTH6 sf? 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. See, e.g., Information Requests, Twitter (Jan. 11, 2021), https://transparency.twitter.com/en/reports/information-requests.html [https://perma.cc/8UCA-8VK5]; Law Enforcement Requests Report, Microsoft, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report [https://perma.cc/ET8L-TL9C]; Transparency Report: Government Requests for Data, Uber (Sept. 22, 2020), https://www.uber.com/us/en/about/reports/law-enforcement [https://perma.cc/M9J4-YKT6]. At this time, fewer pedestrians would be around, and fewer individuals would be captured by the geofence warrant. Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. Google provides the more specific informationlike an email address or the name of the account holderfor the users on the narrower list. Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. Application for Search Warrant, supra note 174. 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. Either way, judges consider only the warrant immediately before them and may not think through how their proposed tests will be extrapolated.179179. This rummaging and the general [a]wareness that the government may be watching chills associational and expressive freedoms.106106. 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. Probable cause for a van does not extend to a suitcase located within it,119119. It is the essential source of information and ideas that make sense of a world in constant transformation. 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. 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. Because this data is highly sensitive, especially in the aggregate, a description of the things to be seized is critical to framing the scope of warrants, which judges are constitutionally tasked to review. Since then, it has generally been understood that no warrant can authorize the search of everything or everyone in sight.9696. Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018); City of Ontario v. Quon, 560 U.S. 746, 75556 (2010); Skinner v. Ry. Last . Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. 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But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. L. Rev. 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. Id. Here's another rejection covered by Techdirt this one arriving nearly a year ago . Some, for example, will expand the search area by asking for devices located outside the search parameters but within a margin of error.6464. 2015). Virginia,1919. This secrecy prevents the public from knowing how judges consider these warrants and whether courts have been consistent, increasing the need for not only transparency but also uniformity in applying the Fourth Amendment to geofence warrants. Arson, No. Ct. 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. If law enforcement needed to establish only probable cause to search a private companys location history records, probable cause would always be satisfied with the same choice statistics121121. In fact, geofence warrants, like most warrants, are almost certainly judicial records, which are the quintessential business of the publics institutions6262. Complaint at 23, Rodriguez v. Google, No. Even more strikingly, this level of intrusion is often conducted with little to no public safety upside.