March 15, 2022. 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. .); Google Amicus Brief, supra note 11, at 14 (To produce a particular users CSLI, a cellular provider must search its records only for information concerning that particular users mobile device.). The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. All rights reserved. These searches, which occur [w]ith just the click of a button and at practically no expense,102102. While Google has responded to requests for additional information at step two without a second court order, see Paul, supra note 75, this compliance does not mean the information produced is a private search unregulated by the Fourth Amendment. In order for step twos back-and-forth to be lawful, therefore, the geofence warrant must have authorized these further searches. Why is this size of area necessary? . In that case, the . Other tech companies that collect location data, including Apple, Microsoft, and Uber, receive similar requests each year. The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. 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]. Id. Pharma II, No. 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. 1996)). Part II begins with the threshold question of when a geofence search occurs and argues that it is when private companies parse through their entire location history databases to find accounts that fit within a warrants parameters. IV (emphasis added); see also Fed. Across all 50 states, geofence requests to Google increased from 941 in 2018 to 11,033 in 2020 and now make up more than 25 percent of all data requests the company receives from law enforcement. See, e.g., Klayman v. Obama, 957 F. Supp. L. No. Without additional warrants, officials are given leeway to expand searches beyond the time and geographic scope of the original request8383. Google Amicus Brief, supra note 11, at 3. The material on this site may not be reproduced, distributed, transmitted, cached or otherwise used, except with the prior written permission of Cond Nast. Apple and Facebook remained resolute in their vow not to build back doors into their products for law enforcement to potentially view the private communications of . Simply because the government can obtain location data from private companies does not mean that it should legally be able to. Tex. 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. It means that an idle Google search for an address that corresponds to the scene of a robbery could make you a suspect. North Carolina,1717. . Washington, D.C.,2020. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. Steele, 267 U.S. at 503. At step one, Google must search all of its location information, including the additional information it produces during the back-and-forth at step two. See id. Lab. Rep. 807 (KB); and Money v. Leach (1765) 97 Eng. and not find a cell phone on the person,142142. . ; Fed. See, e.g., Search Warrant, supra note 5. These warrants often do not lead to catching perpetrators2222. at 48586. 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. 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. See id. Because the search area was broad and thus vague, a warrant would merely invite[] the officers to roam the length of [the street]117117. When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020) (rejecting the governments argument that Googles framework curtail[s] or define[s] the agents discretion in a[] meaningful way); see also Arson, 2020 WL 6343084, at *10; Pharma II, No. The relevant inquiry is the degree of the Governments participation in the private partys activities. Id. all of which at least require law enforcement to identify a specific suspect or target device. 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. The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." 20 M 297, 2020 WL 5491763 (N.D. Ill. July 8, 2020). Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. . The fact that geofence results indicate only proximity to a crime, not whether someone broke the law or is even suspected of wrongdoing, has also alarmed legal scholars, who worry it could enable government searches of people without real justification. See Berger v. New York, 388 U.S. 41, 57 (1967). This Note presumes that geofence warrants are Fourth Amendment searches. In other words, before a warrant can be issued, a judge must determine that a warrant application has sufficiently established probable cause and satisfied the requirement of particularity.5050. Though admittedly an open question, Google has advocated that they are,2828. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. 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. Id. at 117. On January 14, 2020, these rides made him a suspect in a local burglary.22. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. 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). 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. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of Sensorvault.7979. Va. June 14, 2019). To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. New iMac With 'iPad Pro Design Language'. Dist. Usually, officers identify a suspect or person of interest, then obtain a warrant from a judge to search the persons home or belongings. The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. 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]. 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. 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. Time and Place. Geofence warrants are warrants used by police to tech companies for information about devices in specific areas. The Court has recognized that the reasonableness standard introduces uncertainty, see United States v. Leon, 468 U.S. 897, 914 (1984), and many have criticized the standards flexibility and have called for its further definition, see, e.g., United States v. Ventresca, 380 U.S. 102, 117 (1965) (Douglas, J., dissenting); Ronald J. Bacigal, Making the Right Gamble: The Odds on Probable Cause, 74 Miss. In the meantime, as law enforcement relies on the warrants, countless more passersby will become collateral damage., 2023 Cond Nast. See, e.g., Susan Freiwald & Stephen Wm. 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]. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. 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. Id. Geofencing itself simply means drawing a virtual border around a predefined geographical area. Angela Lang/CNET. L. Rev. 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. United States v. Ross, 456 U.S. 798, 824 (1982). United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). Android controls around eighty-five percent of the global smartphone market. But see, e.g., Orin Kerr, Why Courts Should Not Quantify Probable Cause, in The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz 131, 13132 (Michael Klarman, David Skeel & Carol Steiker eds., 2012). and with geofence warrants, there is often barely a law enforcement rationale. Additionally, geofence warrants are usually sealed by judges.5858. Google Amicus Brief, supra note 11, at 45. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. But a warrant does not need to describe the exact item being seized,160160. 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. Johnson v. United States, 333 U.S. 10, 14 (1948). In contrast, law enforcement in Arson explained why all the areas included in the geofence could potentially reveal evidence of witnesses or coconspirators. The order will indicate a small area where the incident occurred and a window of time when it happened. . Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. 1848 (codified as amended in scattered sections of 18 U.S.C.). Both iPhone and Android have a one-click button to tap that disables everything. 14, 2018). Google uses its stored location data to personalize advertisements, estimate traffic times, report on how busy restaurants are, and more. The best tool to defend that right in Email updates on news, actions, events in your area, and more. This Note begins to fill the gap, focusing specifically on the Fourth Amendments warrant requirements: probable cause and particularity. The Supreme Court has rejected efforts to expand the scope of this provision to embrace unenumerated matters. United States v. Grubbs, 547 U.S. 90, 97 (2006). 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. The Arson court first emphasized the small scope of the areas implicated. Global Nav Open Menu Global Nav Close Menu See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). Steagald v. United States, 451 U.S. 204, 220 (1981). Last . Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. Google Told Them, MPRnews (Feb. 7, 2019, 9:10 PM), https://www.mprnews.org/story/2019/02/07/google-location-police-search-warrants [https://perma.cc/Q2ML-RBHK] (describing a six-month nondisclosure order). 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. Here's What You Need to Know about Battery Health Management in Catalina. probable causes exact requisite probability remains elusive. 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]. A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. 8$6m7]?{`p|}IZ%pVcn!9c69?+9T:lDhs%fFfA# a$@-qyKmE3 /6"E3J3Lk;Np. In fact, geofence warrants, like most warrants, are almost certainly judicial records, which are the quintessential business of the publics institutions6262. The warrant must still be sufficiently particular relative to its objective: finding accounts whose location data connects them to the crime. 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. 2 (Big Hit Ent. According to Google, geofence warrant requests for the company in Virginia jumped from 72 in 2018 to 304 in 2019 and 484 in 2020.