Last year alone, the company received over 11,550 geofence warrants from federal, state, and local law enforcement. Geofence warrants that allow law enforcement to collect location data on mobile device users for criminal probes are under attack by civil rights groups and public defenders; they say the warrants . Thus, a "geofence warrant" provides the government the ability to obtain location data for a Google user for a particular area and, eventually, subscriber information for the account holder using . Pharma II, 2020 WL 4931052, at *16; see also Groh, 540 U.S. at 557. The overwhelming majority of the warrants were issued by courts to state and local law enforcement. 27 27. at *5. Between 2017 and 2018, the number of geofence warrants issued to Google increased by more than 1,500%; between 2018 and 2019, over another 500%.2424. First Circuit Divides on Constitutionality of Warrantless Pole-Camera Surveillance of Home's Curtilage. amend. Raleigh Police Searched Google Accounts as Part of Downtown Fire Probe, WRAL.com (July 13, 2018, 2:07 PM), https://www.wral.com/scene-of-a-crime-raleigh-police-search-google-accounts-as-part-of-downtown-fire-probe/17340984 [https://perma.cc/8KDX-TCU5] (explaining that Google could not disclose its search for ninety days); Tony Webster, How Did the Police Know You Were Near a Crime Scene? EFF proudly joins ACLU California Action and If/When/How to co-sponsor new California legislation to protect people seeking abortion and gender-affirming care from dragnet-style digital surveillance. Its closest competitor is Waze, which is also owned by Google. In a legal brief, Google said geofence requests jumped 1,500% from 2017 to 2018, and another 500% from 2018 to 2019. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. The geofence warrants served on Google shortly after the riot remained sealed. . This Is How It Works., N.Y. Times (Apr. f]}~\zIfys/\ 3p"wk)_$r#y'a-U 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. 347, 37388. Va. June 14, 2019). See Skinner v. Ry. . Warrants can be issued by magistrate judges or state court judges. March 15, 2022. Id. Enter a serial number to review your eligibility for support and extended coverage. 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. 138 S. Ct. 2206. the information retrieved in response to a geofence warrant is pervasive, detailed, revealing, retroactive, and cheap.3333. Apple, whose software runs mobile devices such as its iPhone, cannot respond to geofence warrants, a company spokesperson said. at 1245, is constitutionally suspect). 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. In California, geofence warrant requests leaped from 209 in 2018 to more than 1,900 two years later. Because the search area was broad and thus vague, a warrant would merely invite[] the officers to roam the length of [the street]117117. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . 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. Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. Rep. 1075 (KB). 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. As a result, Molina dropped out of school, lost his job, car, and reputation, and still has nightmares about sitting alone in his jail cell.88. 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]. probable causes exact requisite probability remains elusive. 2016); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.7(b), at 95355 (5th ed. The bar on general warrants has been well established since even before the Founding. Google Amicus Brief, supra note 11, at 13. 2019). Congress must engage in proactive legislation as it has done with other technologies181181. Zachary McCoy went for a bike ride on a Friday in March 2019. 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. Id. R. Crim. << /Filter /FlateDecode /Length 4987 >> Servers Controlled by Google, Inc., No. and other states. Wisconsin,2121. Minnesota,1515. See, e.g., Pharma I, No. Mar. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. Every DJI quadcopter broadcasts its operator's position via radiounencrypted. See, e.g., Fed. 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. A warrant that authorized one limited intrusion rather than a series or a continuous surveillance thus could not be used as a passkey to further search.8787. 18 U.S.C. 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. Additionally, geofence warrants are usually sealed by judges.5858. The trick is knowing which thing to disable. See Google Amicus Brief, supra note 11, at 1314. During the protests in response to the murder of George Floyd, for example, companies collected and sold protesters phone data to political groups for election-related use,107107. Critics noted that such a bill could penalize anyone attending peaceful demonstrations that, because of someone elses actions, become violent. Geofence warrants are warrants used by police to tech companies for information about devices in specific areas. . ; Fed. Since then, it has generally been understood that no warrant can authorize the search of everything or everyone in sight.9696. Because of their inherently wide scope, geofence warrants can give police access to location data from people who have no connection to criminal activities. 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. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. Virginia,1919. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . Without additional warrants, officials are given leeway to expand searches beyond the time and geographic scope of the original request8383. Lab. 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. . 2012); Susan W. Brenner & Leo L. Clarke, Fourth Amendment Protection for Shared Privacy Rights in Stored Transactional Data, 14 J.L. 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. 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. IV (emphasis added); see also Fed. 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. To protect individual privacy and dignity against arbitrary government intrusions,4848. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. applies to these warrants. See id. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. 1. Geofence warrants further remove barriers by allowing law enforcement to outsource much of its investigative work, including finding a suspect, to private companies. The first is a list of anonymized data from the phones in the . When a geofence warrant is executed, courts should recognize that the search consists of two components: a search through (1) a private companys database for (2) data associated with a particular time and place. Please check your email for a confirmation link. But in practice, it is not that clear cut. As a result, geofence warrants are general warrants and should be unconstitutional per se. Third, and finally, Google provides account-identifying information, such as the first names, last names, and email addresses of the users.7676. It should be a last resort, because its so invasive.. What kind of information do officers receive? and the Supreme Court has maintained that warrants are generally preferred.3030. 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. Maine,1414. 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. Geofence warrants work differently from typical search warrants. Rather than issuing a warrant for data on a specific individual, these warrants seek information on all of the devices in a given area at a given time. No available New Jersey decision analyzes geofence warrants. While traditional court orders permit searches related to known suspects, geofence warrants are issued specifically because a suspect cannot be identified.1010. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. See Jon Schuppe, Google Tracked His Bike Ride Past a Burglarized Home. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. Apple told the Times that it doesn't have the ability to furnish law enforcement with data in the same way as Google. 19-cr-00130 (E.D. and cell-site simulators,100100. Eighty-one percent have smartphones. 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. Alamat: Jln. In Ohio, requests rose from seven to 400 in that same time. Id. by a court of competent jurisdiction.6060. 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). Search Warrant, supra note 5. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. Until now, geofence warrants have largely gone uncontested by U.S. judges, with rare . 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. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Steele, 267 U.S. at 503. Geofences are a tool for tracking location data linked to specific Android devices, or any device with an app linked to Google Maps. 1241, 1245, 126076 (2010) (arguing that [t]he practice of conditioning warrants on how they are executed, id. Arson, No. "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. It is clear that technology will only continue to evolve. for Just., Cellphones, Law Enforcement, and the Right to Privacy 5 (2018), https://www.brennancenter.org/sites/default/files/2019-08/Report_Cell_Surveillance_Privacy.pdf [https://perma.cc/Z6F7-XZYV]. it relies in large part on police expertise and intuition134134. Part I describes the limited judicial and public oversight that these warrants currently receive, then explains the process by which Google responds to them. Apple, Uber, and Snapchat have . Id. P. 41(d)(1), (e)(2). 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. Laperruque argues that geofence warrants could have a chilling effect, as people forgo their right to protest because they fear being targeted by surveillance. For an overview of the Fourth Amendment at the Founding, see generally Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. 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. 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. Safford Unified Sch. Clayton Rice, K.C. Location data is inextricably tied to the freedoms of speech and association. 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. Google is the most common recipient and the only one known to respond.4747. Both iPhone and Android have a one-click button to tap that disables everything. Google Amicus Brief, supra note 11, at 1213. 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. Although these warrants have been used since 20162626. 2015) (emphasizing, albeit in a different context, that society often refuses to change and even perpetuates inherently unbalanced social structures and yet blames those disadvantaged for not being able to keep up). On the iPhone it's called "Location Services". 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. how can probable cause to search a store located in a seventy-story skyscraper possibly extend to all the other places in the building? Ng, supra note 9. Geofence warrants arent only issued to Google. at 480. to find evidence whether by chance or other means.118118. The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Cond Nast. 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. 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). Check your Apple warranty status. 2013), vacated, 800 F.3d 559 (D.C. Cir. Law enforcement . and raise interesting and novel Fourth Amendment questions, they have rarely been studied. Each one of these orders could sweep in hundreds or . 1995 (2017). Camara v. Mun. See United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring); see also State v. Brown, 202 A.3d 1003, 1012 n.8 (Conn. 2019); Commonwealth v. Estabrook, 38 N.E.3d 231, 237 (Mass. 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 . A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. R. Crim. Ring Road Utara, Kaliwaru, Condongcatur, Kabupaten Sleman, Daerah Istimewa Yogyakarta 55282. In most cases, the information is in the form of latitude and longitude coordinates derived . (1763) 98 Eng. Id. Last week, Google responded to calls by a civil liberties coalition, including POGO, to issue a report of how often it receives geofence demands. A general warrant is one that specifie[s] only an offense, leaving to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.9191. In the past, the greatest protections of privacy were neither constitutional nor statutory, but practical.176176. 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. 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]. 388 U.S. 41 (1967). See id. Johnson v. United States, 333 U.S. 10, 14 (1948). Stored at Premises Controlled by Google (Pharma I), No. . Google Amicus Brief, supra note 11, at 12. But talking to each other only works when the people talking have their human rights respected, including their right to speak privately. 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. Why this time? Google and other private companies act[] as. Just., Summer 2020, at 7. 373, 40912 (2006); see also Jeffrey S. Sutton, 51 Imperfect Solutions 17478 (2018) (explaining the lockstep phenomenon). Geofence warrants rely on the vast trove of location data that Google collects4242. Ct. May 9, 2018), https://int.nyt.com/data/documenthelper/764-fdlelocationsearch/d448fe5dbad9f5720cd3/optimized/full.pdf [https://perma.cc/TSL6-GFCD] (issuing an indefinite nondisclosure order); Amanda Lamb, Scene of a Crime? Google Amicus Brief, supra note 11, at 3. Id. 3d 648, 653 (N.D. Ill. 2019). 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. See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). Id. Geofencing with iPhone. First, because it has no way of knowing which accounts will produce responsive data, Google searches the entirety of Sensorvault, its location history database,6969. 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., Application for Search Warrant (Minn. Hennepin Cnty. Their support is welcome, especially since. (June 12, 2019), https://www.pewresearch.org/internet/fact-sheet/mobile [https://perma.cc/7WWT-NLPP]. In fact, it is more precise than either CSLI or GPS.3434. 2019). See Google Amicus Brief, supra note 11, at 14. Id. Geofence warrants are popular. 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. United States v. Ross, 456 U.S. 798, 824 (1982). 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. Here's another rejection covered by Techdirt this one arriving nearly a year ago . 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. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. but to Google or an Apple, saying this is a geographic region . Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. A secondary viewing method can be used via the following link: Dropbox Files. 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.