What are geofence warrants?
Location data on your smartphone is giving law enforcement new surveillance tools
So what exactly do police get through these warrants?
A traditional search warrant for a car or a house or a laptop typically targets a specific person police have probable cause to suspect of a crime.
Geofence warrants allow law enforcement officers to search when they don’t have a potential suspect.
Geofencing itself simply means drawing a virtual border arounda predefined geographical area. Data can then be gathered on users who enter that area.
Geofencing is often used by marketers trying to reach specific audiences. A conservative political organization called CatholicVote has used geofencing technologyto identify Catholic church-goersand send targeted political ads to their devices. Clothing retailer Gap used the technology to send virtual ads to userswithin a certain distance of their physical ads. An NBC News report from late last year found that the University of North Carolina was using geofencing tomonitor the location and social media activityof protesters on campus. And the American Civil Liberties Union found in 2016 that law enforcement was using a social media monitoring service called Geofeedia totrack Black Lives Matter protesters.
(In response to the ACLU’s report, Facebook, Twitter, and Instagram announced they would no longer provide their users’ data to Geofeedia.)
While it’s unclear exactly how deep police can dive into user data they obtain from geofence warrants, current cases where the warrants are being challenged are revelatory.
In anarmed robbery case in Richmond, Va., police were able to use such a warrant to not only identify the accused but also access his location history from that day and personal information like his email address. That case is in federal court in the Eastern District of Virginia. In aburglary case in state court in San Francisco, a man was identified through a geofence warrant through which police also acquired two email addresses of his, a complete list of Google-associated applications he’d used, and the IP address of at least one of his devices.
(Defendants in both cases, which are wending their ways through court, argue that the warrants were unconstitutional.)
In acourt filingin the Virginia case, Google said that in addition to location history, geofence warrants can include “account-identifying information” and “account subscriber information such as the Gmail address associated with the account and the first and last name entered by the user on the account.”
Are these warrants constitutional?
Civil liberties groups say the issue with geofence warrants is just how much information from innocent individuals law enforcement can get their hands on.
The claim is that they violate the Fourth Amendment, which protects Americans against “unreasonable searches and seizures” and stipulates that warrants only be issued with probable cause “particularly describing the place to be searched, and the persons or things to be seized.” The problem with geofence warrants is that the persons and place to be searched are rarely particular, and there’s no limit to how many innocent people are included if they happen to be in law enforcement’s search boundaries.
Police, on the other hand, generally argue that such warrants aren’t so different from other types of surveillance—from using security camera footage tosifting through data from cell towersto see which devices passed through the area.
Google has not taken a public position on whether it believes the warrants are constitutional but says it does provide data when presented with a warrant. The company has outlined its process in court filings and said that it considers executing geofence warrants “a broad and intrusive search” that’s significantly different from cellphone tower dumps.
The constitutional question is largely unsettled—no case involving a geofence warrant has made its way to a high-level court. But on Aug. 24, Magistrate Judge Gabriel A. Fuentes of the U.S. District Court for the Northern District of Illinois issued what is believed to be thefirst federal court opinionon the Fourth Amendment’s relationship to geofence warrants.
Investigators in the state requested ageofence warrant three timesin hopes of finding a suspect who allegedly stole prescription drugs. Despite repeatedly narrowing their request, Judge Fuentes declined to grant the warrant.
While geofence warrants are not in themselves “categorically unconstitutional,” he wrote, investigators lacked probable cause to scoop up vast location data from cellphones of people who obviously had no connection to a crime but happened to be nearby when it was committed.
“The potential to use Google’s capabilities to identify a wrongdoer by identifying everyone (or nearly everyone) at the time and place of a crime may be tempting,” Fuentes wrote. “But if the government can identify that wrongdoer only by sifting through the identities of unknown innocent persons without probable cause and in a manner that allows officials to ‘rummage where they please in order to see what turns up,’ ” then courts should not permit the practice.
There are political efforts to rein them in
On April 8, state senator Zellnor Myrie introduced theReverse Location Search Prohibition Actin New York.
The bill would prohibit “the search, with or without a warrant, of geolocation data of a group of people who are under no individual suspicion of having committed a crime, but rather are defined by having been at a given location at a given time.”
If the bill passes, New York would become the first state where geofence warrants are banned.
“We can either create boundaries on what kinds of data companies can collect—only to be outpaced by new advances in technology—or we can put limits on how law enforcement can obtain and use that data,” Myrie said in an email.
Armstrong, the North Dakota congressman, has also confronted Google about its compliance with geofence warrants.
At a hearing featuring theCEO’s of Amazon, Apple, Facebook, and Google, Armstrong pointedly asked Google CEO Sundar Pichai about such warrants.
“People would be terrified to know that law enforcement could grab general warrants and get everyone’s information everywhere,” Armstrongsaid in the hearing. “It requires Congress to act, and it requires everybody that is a witness in this hearing to be willing to work too, because it is the single most important issue.”
Pichai responded by saying Google thinks “it’s an important area for Congress to have oversight” and that the company recently began automatically deleting location activity after “a certain period of time.”
“I don’t blame the tech companies solely for this,” Armstrong told The Markup. “Congress’s failure to act on this is going to become more and more of an issue.”
This article wasoriginally published on The Markupby Leila Barghouty and was republished under theCreative Commons Attribution-NonCommercial-NoDerivativeslicense.
