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. 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 . Apple plans to announce ARM transition for all Macs at WWDC 2020. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. Last . 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. In the statement released by the companies, they write that, This bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity or used a certain search term. This is an undoubtedly positive step for companies that have a checkered history of being. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. Riley v. California, 573 U.S. 373, 385 (2014). The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . Few are as fortunate as McCoy, who at least was informed and had the opportunity to block the request in court. Finds Contact Between Proud Boys Member and Trump Associate Before Riot, N.Y. Times (Mar. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. 1. 1. iBox Service. 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. f]}~\zIfys/\ 3p"wk)_$r#y'a-U Id. While Apple, Facebook and other tech companies have geofencing capabilities, Google is often used for . They also vary in the evidence that they request. WIRED is where tomorrow is realized. 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]. Step twos back-and-forth reinforces the possibility that a companys entire database could be retrieved and exposed to law enforcement from nonobservable form to observable form. Id. 2019). 20 M 392, 2020 WL 4931052, at *13 (N.D. Ill. Aug. 24, 2020). Apple will only provide content in response to a search warrant issued upon a showing of probable cause, or customer consent. In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson)150150. Conclusion. After producing a narrowed list of accounts in response to a warrant, companies often engage in a back-and-forth with law enforcement, where officials requestadditional location information about specific devices from before or after the requested timeframe to narrow the list of suspects.8282. S8183, 20192020 Leg. Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. % Ctr. See Ornelas v. United States, 517 U.S. 690, 700 (1996); Wong Sun v. United States, 371 U.S. 471, 480 (1963); Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark L. Rev. All requests from government and law enforcement agencies outside of the United States for content, with the exception of emergency circumstances (dened below in Emergency Requests), must comply As a result, geofence warrants are general warrants and should be unconstitutional per se. Brewster, supra note 14. Here's Techdirt's coverage of two consecutive rejections of a geofence warrant published in June 2020. 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. In addition, he and his companies must modify their stalkerware to alert victims that their devices have been compromised. Explore the stories of slave revolts, the coded songs of Harriet Tubman, civil rights era strategies for circumventing "Ma Bell," and the use of modern day technology to document police abuse. . Thus, in order for the warrant requirements to mean anything, probable cause must be required for the time and geographic area swept into the geofence search. and raise interesting and novel Fourth Amendment questions, they have rarely been studied. 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. The Richmond police used personal data from Google Maps to crack a six-month-old bank robbery, triggering protests from the suspect's counsel that the use of what is known as a "geofence warrant . 2019). Specific legislative solutions are beyond the scope of this Note. For more applicable recommendations, see Rachel Levinson-Waldman, Brennan Ctr. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. In 2018, the Associated Press revealed that Google continues to collect location data even when location history tracking is disabled. 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). Id. .); 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.). . See United States v. Patrick, 842 F.3d 540, 54245 (7th Cir. 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). Katie Benner, Alan Feuer & Adam Goldman, F.B.I. See S.B. Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. Geofences are a tool for tracking location data linked to specific Android devices, or any device with an app linked to Google Maps. Animal rights activists have captured the first hidden-camera video from inside a carbon dioxide stunning chamber in a US meatpacking plant. and the time period at issue (the wee hours of the morning. For an overview of deference to police knowledge, see generally Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. 19-cr-00130 (E.D. See Google Amicus Brief, supra note 11, at 14. L.J. 20 M 392, 2020 WL 4931052, at *1617 (N.D. Ill. Aug. 24, 2020); In re Search of: Info. at 57. . The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. (May 31, 2020). See id. Similarly, geofence data could be used as evidence of guilt not just by being loosely associated with someone else in a crowd but by simply being there in the first place. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). S. ODea, Number of Android Smartphone Users in the United States from 2014 to 2021, Statista (Mar. 20 M 525, 2020 WL 6343084, at *10 (N.D. Ill. Oct. 29, 2020); Pharma II, No. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. 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. Similarly, with a. , police compel the company to hand over the identities of anyone who may have searched for a specific term, such as a victims name or a particular address where a crime has occurred. In Ohio, requests rose from seven to 400 in that same time. 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. 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. at *5 n.6. Meanwhile, places like California and Florida have seen tenfold increases in geofence warrant requests in a short time. 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 *3. and cameras in the area that law enforcement already had access to captured no pedestrians and only three cars.169169. Id. Part III explains that if courts instead adopt a narrow definition of searches, such that only the accounts that fall within the terms of a warrant are considered searched, law enforcement must satisfy the Fourth Amendments probable cause and particularity requirements by establishing that evidence of a crime is likely to be found in a companys location history records associated with a specific time and place and providing specific descriptions of the places searched and things seized. Here's another rejection covered by Techdirt this one arriving nearly a year ago . On the Android, it's simply called "Location". Second, [t]he fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Skinner v. Ry. Each of these companies regularly share transparency reports detailing how often they hand over user info to law enforcement, but Google is the first to separately detail geofence warrants. Though admittedly an open question, Google has advocated that they are,2828. . (June 12, 2019), https://www.pewresearch.org/internet/fact-sheet/mobile [https://perma.cc/7WWT-NLPP]. In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. See Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (Whether the Government employs its own surveillance technology . Arson, again, provides a good example of sufficiently particular geofence warrants. Indeed, users proactively enable location tracking,3636. 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. 591, 619 (2016) (explaining that probable cause requires the government to show a likely benefit that justifies [the searchs] cost). 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. See Google Amicus Brief, supra note 11, at 14. If you have a warrant you need, or a template you feel would be good to add please email shortb@jccal.org. Their support is welcome, especially since weve been calling 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. Android controls around eighty-five percent of the global smartphone market. . 2012). R. Crim. 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. 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. . . See Arson, 2020 WL 6343084, at *8. Stored at Premises Controlled by Google (Pharma II), No. First, officers had established the existence of coconspirators using traditional surveillance tools.155155. See Arson, 2020 WL 6343084, at *5. 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. But a warrant does not need to describe the exact item being seized,160160. The court also highlighted the length of time (fifteen to thirty minutes170170. R. Crim. it relies in large part on police expertise and intuition134134. Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies' digital toolbox. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the . U.S. Const. Pharma II, No. Id. That is because Apple doesn't store location data in a format . The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. Others ask for lists of all implicated users, their phone numbers, IP addresses, and more.6666. but to Google or an Apple, saying this is a geographic region . Id. Rep. 807 (KB); and Money v. Leach (1765) 97 Eng. Law enforcement agencies frequently require Google to provide user data while forbidding it from notifying users that it has revealed or plans to reveal their data.55. 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. The Reverse Location Search Prohibition Act, A. Geofencing itself simply means drawing a virtual border around a predefined geographical area. Representative Kelly Armstrong suggested that geofence warrants should be considered contents within the Electronic Communications Privacy Act of 1986 (ECPA), Pub. and their decisions informed and deliberate.5252. at *5. . See Rachel Levinson-Waldman, Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public, 66 Emory L.J. 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. Spy Cams Reveal the Grim Reality of Slaughterhouse Gas Chambers. 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. 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. Pharma II, 2020 WL 4931052, at *16; see also Groh, 540 U.S. at 557. See 28 U.S.C. 793Stop All Digital Last week, the New York Attorney General secured a $410,000 fine from Patrick Hinchy and 16 companies that he runs which produce and sell spyware and stalkerware. 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. This list is and will always be a work in progress and new warrants will be added periodically. The government must thus establish probable cause for the time146146. Location data is inextricably tied to the freedoms of speech and association. Fifth Circuit Delivers a New Law Enforcement Functions Test for Identifying Government Actors. 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. Webster, supra note 5. As . 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. The online conversations that bring us closer together can help build a world thats more free, fair, and creative. Time period should be treated analogously to geographic parameters for purposes of probable cause. 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. Both iPhone and Android have a one-click button to tap that disables everything. Search Warrant, supra note 5. [-~P?42r%gS(_: Even more strikingly, this level of intrusion is often conducted with little to no public safety upside. McCoy received notice from Google that he had seven days to go to court or risk the release of information related to his Google account and use of Google products to law enforcement.33. warrant, "geofence warrants," which are testing the boundaries of the Fourth Amendment. 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). Johnson, 333 U.S. at 14; see also Katz v. United States, 389 U.S. 347, 35859 (1967). The geofence warrants served on Google shortly after the riot remained sealed. No. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. 2. 636(a)(1); Fed. 205, 22731 (2018); Jennifer D. Oliva, Prescription-Drug Policing: The Right to Health Information Privacy Pre- and Post-Carpenter, 69 Duke L.J. Map: Klik Disini. Other tech companies that collect location data, including Apple, Microsoft, and Uber, receive similar requests each year. Judicial involvement in the warrant process has long been justified on the basis that judges are neutral and detached5151. 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 . To protect individual privacy and dignity against arbitrary government intrusions,4848. Ventresca, 380 U.S. at 107; Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813). There is, additionally, the age-old critique that judges do not understand the technologies they confront. Support A.B. 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]. 2011) (Flaum, J., concurring), vacated, 565 U.S. 1189 (2012))). When probable cause to search a garage does not even extend to a bedroom in the same house,147147. Berger, 388 U.S. at 57. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. 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. This type of devastating scheme ensnares victims and takes them for all theyre worthand the threat is only growing. stream R. Crim. Id. These warrants often do not lead to catching perpetrators2222. But see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. P. 41(e)(2). 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). "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. Some have suggested that geofence warrants should be treated like wiretaps. 1995 (2017). While it is true that not everybody constantly carries their cell phone, and a cell phone is not always sending location information to Google,143143. They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. P. 41(d)(1), (e)(2). Geofence warrant requests in Virginia grew from 72 in 2018 to 484 in 2020, . L. No. 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 . The Act does not mention sealing, and the government has conceded there are no default sealing or nondisclosure provisions.6161. and the Supreme Court has maintained that warrants are generally preferred.3030. Cf. . 25102522, which would require law enforcement to establish necessity. Check your Apple warranty status. 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. See id. There has been a dramatic increase in the use of geofence warrants by law enforcement in the U.S. Across all 50 states, geofence requests to Google increased from 941 in 2018 to 11,033 in 2020, accounting for a significant portion of all requests the company receives from law enforcement. The best tool to defend that right in Email updates on news, actions, events in your area, and more. 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 wiretaps,9898. The warrant specifies a physical location and a time period. 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.