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. See United States v. Patrick, 842 F.3d 540, 54245 (7th Cir. % Regarding Accounts Associated with Certain Location & Date Info., Maintained on Comput. In Ohio, requests rose from seven to 400 in that same time. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. It is the essential source of information and ideas that make sense of a world in constant transformation. Maryland v. Garrison, 480 U.S. 79, 84 (1987). 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. 5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. Second, this list is often quite broad. 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. Many geofence warrants do not lead to arrests.111111. at 480. to find evidence whether by chance or other means.118118. The Virginia Geofence Warrant. We looked for any warrant described as targeting . xKGr) ]c .`;#JV~GfF"F6xfedmBF{-ym7i}g/b}hjnWow8Y"av4J?wm_5_/xq A secondary viewing method can be used via the following link: Dropbox Files. But they can do even more than support legislation in one state. But lawyers for Rhine, a Washington man accused of various federal crimes on January 6, recently filed a motion to suppress the geofence evidence. Law enforcement investigators have also made geofence requests to tech companies including Apple, Snapchat and Uber. 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. Berger, 388 U.S. at 56 ([T]he indiscriminate use of such devices in law enforcement[] . Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. . But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. and the time period at issue (the wee hours of the morning. Elm, supra note 27, at 13; see also 18 U.S.C. Cf. Going to cell phone providers is a bit tricky, thanks to the Supreme Cou 8$6m7]?{`p|}IZ%pVcn!9c69?+9T:lDhs%fFfA# a$@-qyKmE3 /6"E3J3Lk;Np. 1. Google received 982 geofence warrants in 2018, 8,396 a year later, and 11,554 in 2020, according to the latest data released by the company. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. Google Amicus Brief, supra note 11, at 3. Why this time? Here's What You Need to Know about Battery Health Management in Catalina. 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. L. Rev. Now Its Paused, The Biggest US Surveillance Program You Didnt Know About. The decision believed to be the first of its kind could make it more difficult for police to continue using an investigative technique that has exploded in popularity in recent years, privacy . at *5 n.6. Id. When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. To allow officials to request this information without specifying it would grant them unbridled discretion to obtain data about particular users under the guise of seeking location data.175175. The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. Berger, 388 U.S. at 57. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. . Yet there is little to suggest that courts will hold geofence warrants categorically unconstitutional any time soon, despite the Courts recognition that intrusive technologies should trigger higher judicial scrutiny.177177. Courts have long been reluctant to forgive the requirements of the Fourth Amendment in the name of law enforcement,113113. Additionally, courts have largely recognized the ubiquity of cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.144144. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. 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 Google Amicus Brief, supra note 11, at 1314. Valentino-DeVries, supra note 42. to produce an anonymized list of the accounts along with relevant coordinate, timestamp, and source information present during the specified timeframe in one or more areas delineated by law enforcement.7070. Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. Mar. Although these warrants have been used since 2016 26 26. Virginia,1919. 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. 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. 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). If they are not unconstitutional general warrants because the searched location data is confined to a particular space and time, courts should evaluate whether a warrant is supported by probable cause with respect to that area. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. and cell-site simulators,100100. Id. This Gizmodo story states that it ranges "from tiny spaces to larger areas covering multiple blocks," while the warrant in WRAL's recent story encompassed "nearly 50 acres.". 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. 2010); United States v. Reed, 195 F. Appx 815, 822 (10th Cir. 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.). 2019). about cell phone usage. Fifth Circuit Delivers a New Law Enforcement Functions Test for Identifying Government Actors. 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. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (Whether the Government employs its own surveillance technology . Similarly, geofence warrants in Florida leaped from 81 requests in 2018 to more than 800 last year. all of which at least require law enforcement to identify a specific suspect or target device. United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. In that case, the . In fact, it is more precise than either CSLI or GPS.3434. Last year alone, the company received over 11,550 geofence warrants from federal, state, and local law enforcement. 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. See Webster, supra note 5 (describing multiple warrants issued within ten minutes of the request). Location History Records. 2015). Apple, whose software runs mobile devices such as its iPhone, cannot respond to geofence warrants, a company spokesperson said. The geofence warrants served on Google shortly after the riot remained sealed. However, while a security camera is fixed at a single known location and its view cannot further be expanded after a recording, geofence warrants allow officers to look for suspects in any place in the world that receives cell service. Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. Map: Klik Disini. 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. Just., Summer 2020, at 7. 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. 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]. 3 0 obj 138 S. Ct. 2206. the information retrieved in response to a geofence warrant is pervasive, detailed, revealing, retroactive, and cheap.3333. Now, a group of researchers has learned to decode those coordinates. The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. They're also controversial. Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. 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. See S.B. Id. ; Products, supra. 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. The geofence is . R. Crim. See, e.g., Search Warrant, supra note 5. It may also include addresses, phone numbers, birth dates, social security numbers, payment information, and IP addresses, among other information.174174. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". Berger, 388 U.S. at 57. Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. Geofence warrants necessarily involve the very sort of general, exploratory rummaging that the Fourth Amendment was intended to prohibit.105105. Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officers evidence search is that it raise a fair probabilityor a substantial chance of discovering evidence of criminal activity.139139. 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 . The information comes in three phases. . I believe that iPhones that have Google apps like Gmail or Youtube running in the foreground have the capability to report location to Google. Carpenter v. United States, 138 S. Ct. 2206, 221718 (2018); Riley v. California, 573 U.S. 373, 38586 (2014); see, e.g., Arson, No. 2017). See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). 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. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. 1995 (2017). Courts are still largely dealing with the threshold question of whether different forms of electronic surveillance count as searches at all, see sources cited supra note 39, an inquiry that can be avoided through legislative solutions. Some have suggested that geofence warrants should be treated like wiretaps. f]}~\zIfys/\ 3p"wk)_$r#y'a-U it is reasonable to believe that the perpetrators phone data can be found in these records. Though admittedly an open question, Google has advocated that they are,2828. Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. In cases involving digital evidence stored with a tech company, this typically involves sending the warrant to the company and demanding they turn over the suspects digital data. Ever-expanding cloud storage presents more risks than you might think. The location data typically comes from Google, who collects data from their Android phone . In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. 84/ S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also supports. 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. vao].Vm}EA_lML/6~o,L|hYivQO"8E`S >f?o2 tfl%\* P8EQ|kt`bZTH6 sf? IV. . The Gainesville Police Department had gotten something called a geofence warrant granted by the Alachua County court. . . 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). Apple, Uber, and Snapchat have . To revist this article, visit My Profile, then View saved stories. 636(a)(1); Fed. See, e.g., Berger, 388 U.S. at 51 (suggesting that section 605 of the Communications Act of 1934, 47 U.S.C. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . Google handed over the GPS coordinates and data, device data, device IDs, and time stamps for anyone at the library for a period of two hours; at the museum, for 25 minutes. Riley v. California, 573 U.S. 373, 385 (2014). . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. 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. at *8. Ng, supra note 9. But there is nothing cursory about step two. The geofence warrant meant that police were asking Google for information on all the devices that were near the location of an alleged crime at the approximate time it occurred, Price explained. 347, 37388. Typically, a geofence warrant calls on Google to access its database of location information. 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). Government practice further suggests that the search begins when companies look through their entire databases. Its closest competitor is Waze, which is also owned by Google. In response, law enforcement may argue that it has historically been allowed to examine[] [papers], at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976); see also United States v. Evers, 669 F.3d 645, 652 (6th Cir. The warrant itself must be particular when presented to a judge for review163163. See Gates, 462 U.S. at 238. In Berger v. New York,8484. . See Brewster, supra note 82. . installed on 2.5 billion active devices, is more widespread than Apple's iOS. Google Amicus Brief, supra note 11, at 1213. Second, law enforcement reviews the anonymized list and identifies devices it is interested in.7171. The number of geofence warrants police submitted to Google has risen dramatically. Just., Summer 2020, at 7. Brewster, supra note 14. Id. This list is and will always be a work in progress and new warrants will be added periodically. 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. CSLI,9999. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . 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. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the . at 57. Geofencing with iPhone. . PLGB9hJKZ]Xij{5 'mGIP(/h(&!Vy|[YUd9_FcLAPQG{9op QhW) 6@Ap&QF]7>B3?T5EeYmEc9(mHt[eg\ruwqIidJ?"KADwf7}BG&1f87B(6Or/5_RPcQY o/YSR0210H!mE>N@KM=Pl Police around the country have drastically increased their use of geofence warrants, a widely criticized investigative technique that collects data from any user's device that was in a specified area within a certain time range, according to new figures shared by Google. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). See id. For an overview of the Fourth Amendment at the Founding, see generally Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. Third and finally, the nature of the crime of arson in comparison to the theft and resale of pharmaceuticals was more susceptible to notice from passerby witnesses.157157. . . 18 U.S.C. . The government must thus establish probable cause for the time146146. Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). In most cases, the information is in the form of latitude and longitude coordinates derived . Critics noted that such a bill could penalize anyone attending peaceful demonstrations that, because of someone elses actions, become violent. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications). 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. 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. Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. What kind of information do officers receive? McCoy didn't think anything unusual had happened that day. Geofence warrants seek location data on every person within a specific location over a certain period of time. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . Florida,1313. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. Geofence Warrants On The Rise. In listing the things to be seized, a warrant must list all the data that law enforcement intends to collect throughout the entirety of Googles process, which includes, at least, the latitude/longitude coordinates and timestamp of the reported location information of each device identified by Google in step one.173173. Either way, judges consider only the warrant immediately before them and may not think through how their proposed tests will be extrapolated.179179. The back-and-forth that law enforcement and private companies often engage in, whereby officials ask companies for additional location information beyond the scope of the approved warrant, raises distinct concerns. at *7. ) These reverse warrants have serious implications for civil liberties. Va. June 14, 2019). The amount of behind-the-scenes cooperation between Apple-Facebook-Google-et-al and law enforcement would boggle the . In 2017, Minnesota officers applied for a warrant asking Google for [a]ny/all user or subscriber information related to the Google searches of the names of various individuals with the first name Douglas.184184. 371 U.S. 471 (1963). Jake Laperruque, Project on Government Oversight, Torn between the latest phones? . Id. They sometimes approve warrants in a few minutes5555. . 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). . 27 27. R. Crim. Googles (or any other private companys) internal methods for processing geofence warrants, no matter how stringent, cannot make an otherwise unconstitutional warrant sufficiently particular. 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. See Google Amicus Brief, supra note 11, at 10; see also Carpenter, 138 S. Ct. at 2218 (recognizing that high technological precision increases the likelihood that a search exists); United States v. Beverly, 943 F.3d 225, 230 n.2 (5th Cir. at 48081. 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. The memorandum was obtained by journalists at BuzzFeed News. Id. Search Warrant, supra note 5. See Katz v. United States, 389 U.S. 347, 35657 (1967); see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979). Ct. Rev. The best tool to defend that right in Email updates on news, actions, events in your area, and more. 591, 619 (2016) (explaining that probable cause requires the government to show a likely benefit that justifies [the searchs] cost). A geo-fence warrant (also known as a geofence warrant or a reverse location warrant) is a search warrant issued by a court to allow law enforcement to search a database to find all active mobile devices within a particular geo-fence area. As a result, to better protect users data and to ensure uniformity of process, Google purports to always push back on overly broad requests6767. No. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. 18 U.S.C. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018); Riley, 573 U.S. at 385. Id. See Berger v. New York, 388 U.S. 41, 57 (1967). 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 . See Jon Schuppe, Google Tracked His Bike Ride Past a Burglarized Home. at 13. Maine,1414. Dist. Id. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). For a discussion of the Carpenter Courts treatment of the third party doctrine, see Laura K. Donohue, Functional Equivalence and Residual Rights Post-Carpenter: Framing a Test Consistent with Precedent and Original Meaning, 2018 Sup. New Resources Available for Password Manager Apps. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8, 2020). Prosecutors declined to comment. The company then gathers information about all the devices that Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . merely by asking private companies. R. Crim. If a geofence warrant is a search, it is difficult to understand why the searchs scope is limited to step two and does not include step one. 19-cr-00130 (E.D. 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]. Geofencing is used in advanced location-based services to determine when a device being tracked is within or has exited a geographic boundary. Alfred Ng, Geofence Warrants: How Police Can Use Protesters Phones Against Them, CNET (June 16, 2020, 9:52 AM), https://www.cnet.com/news/geofence-warrants-how-police-can-use-protesters-phones-against-them [https://perma.cc/3XEJ-L3KT]. 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. If Google complies, it will supply a list of anonymized data about the devices in the area: GPS coordinates, the time stamps of when they were in the area, and an anonymized identifier, known as a reverse location obfuscation identifier, or RLOI. Time and Place. at 1245, is constitutionally suspect). Speaking to WIRED last year, Quart called the tools a fishing expedition that violates people's basic constitutional rights., But regulation can only move so fast. See Products, Google, https://about.google/products [https://perma.cc/ZVM7-G9BX]. See, e.g., Klayman v. Obama, 957 F. Supp. The overwhelming majority of the warrants were issued by courts to state and local law enforcement. We developed a process specifically for these requests that is designed to honor our legal obligations while narrowing the scope of data disclosed.". They are paradigmatic dragnets that run[] against everyone.104104.