How to Encrypt any File, Folder, or Drive on Your System, The Hunt for the Dark Webs Biggest Kingpin, Part 1: The Shadow. In 2018, Google received 982 geofence warrants from law enforcement; in 2020 that number surged to 11,554, according to the most recent data provided by the company. The Washington Post recently published an op-ed by Megan McArdle titled "Twitter might be replaced, but not by Mastodon or other imitators." These searches, which occur [w]ith just the click of a button and at practically no expense,102102. As consumers turn over ever-increasing information to third parties as part of engaging in daily life, there have been vigorous criticisms of the doctrine as out of touch with the modern era and calls to amend it or even abolish it entirely. 2018); United States v. Saemisch, 371 F. Supp. 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. Much has been said about how courts will extend Carpenter if at all.3939. at 48081. 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). by a court of competent jurisdiction.6060. See 28 U.S.C. Id. Just., Summer 2020, at 7. about cell phone usage. ([Such awareness] may alter the relationship between citizen and government in a way that is inimical to democratic society. (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. Although these warrants have been used since 20162626. In subsequent decisions, the Court reinforced the notion that probable cause for a single physical location cannot be widely extended to nearby places. We developed a process specifically for these requests that is designed to honor our legal obligations while narrowing the scope of data disclosed.". Apple, whose software runs mobile devices such as its iPhone, cannot respond to geofence warrants, a company spokesperson said. Recently, users filed a class action against Google on these grounds. Id. See id. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. Id. 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. And that's just Google. Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. 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. 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. ; Fed. 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]. The practice of using sweeping geofence warrants has been adopted by state and federal governments in Arizona,1212. When law enforcement wants information associated with a particular location, rather than a particular user, it can request tower dumps download[s] of information on all the devices that connected to a particular cell site during a particular interval. Carpenter, 138 S. Ct. at 2220; see also United States v. Adkinson, 916 F.3d 605, 608 (7th Cir. 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. . Emblematic of general warrants, these warrants should be highly suspect per se. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, supra, at 1:37:13. Now, a group of researchers has learned to decode those coordinates. 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. Stanford v. Texas, 379 U.S. 476, 481 (1965). The three tech giants have issued a. ,'' that they will support a bill before the New York State legislature. This Part describes the limited role judges and the public currently play in approving and scrutinizing geofence warrants and how Google responds to them. Here's What You Need to Know about Battery Health Management in Catalina. 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. report. Steele, 267 U.S. at 503. See Deanna Paul, Alleged Bank Robber Accuses Police of Illegally Using Google Location Data to Catch Him, Wash. Post (Nov. 21, 2019, 8:09 PM), https://www.washingtonpost.com/technology/2019/11/21/bank-robber-accuses-police-illegally-using-google-location-data-catch-him [https://perma.cc/A9RT-PMUQ]. Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. and that restraints on discretion are imposed by judges rather than the officers themselves.127127. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the federal government. Berger, 388 U.S. at 57. In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. Id. BTS, Baepsae, on The Most Beautiful Moment in Life Pt. Law enforcement has increasingly relied on technology companies to provide information about individual suspects to aid their investigations, sometimes voluntarily but most often in response to court orders.4040. Steagald v. United States, 451 U.S. 204, 220 (1981). IV (emphasis added); see also Fed. 2. Second, law enforcement reviews the anonymized list and identifies devices it is interested in.7171. 2518(1)(c). The warrant was thus sufficiently particular. 2012); Susan W. Brenner & Leo L. Clarke, Fourth Amendment Protection for Shared Privacy Rights in Stored Transactional Data, 14 J.L. See Brewster, supra note 82. Part I describes the limited judicial and public oversight that these warrants currently receive, then explains the process by which Google responds to them. To protect individual privacy and dignity against arbitrary government intrusions,4848. AlphaBay was the largest online drug bazaar in history, run by a technological mastermind who seemed untouchableuntil his tech was turned against him. 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). In California, law enforcement made 1,909 requests in 2020, compared to 209 in 2018. See Arson, 2020 WL 6343084, at *8. Webster, supra note 5. Search Warrant, supra note 5. Wisconsin,2121. If police are investigating a crimeanything from vandalism to arsonthey instead submit requests that do not identify a single suspect or particular user account. WIRED may earn a portion of sales from products that are purchased through our site as part of our Affiliate Partnerships with retailers. Like the cell-site location information (CSLI) at issue in Carpenter v. United States,3232. P. 41(e)(2) (providing a more flexible process for seeking electronically stored information). Many geofence warrants do not lead to arrests.111111. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. 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. 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. Ryan Nakashima, AP Exclusive: Google Tracks Your Movements, Like It or Not, AP News (Aug. 13, 2018), https://www.apnews.com/828aefab64d4411bac257a07c1af0ecb [https://perma.cc/2UUM-PBV6]. 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. On the one hand, individuals have a right to be protected against rash and unreasonable interferences with privacy and from unfounded charges of crime.131131. 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. See Webster, supra note 5 (describing multiple warrants issued within ten minutes of the request). The best tool to defend that right in Email updates on news, actions, events in your area, and more. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. Geofence warrants represent both a continuation and an evolution of this relationship. New Times (Jan. 16, 2020, 9:11 AM), https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374 [https://perma.cc/6RQD-JWYW]. On the Android, it's simply called "Location". . It is clear that technology will only continue to evolve. Geofence warrants are sometimes referred to as reverse location warrants. Its closest competitor is Waze, which is also owned by Google. Of the courts that have considered these warrants, most have implicitly treated the search as the point when the private company first provides law enforcement with the data requested step two in Googles framework with no explanation why.7777. Google Amicus Brief, supra note 11, at 1213. Now Its Paused, The Biggest US Surveillance Program You Didnt Know About. 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. at 498. 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]. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172. Maryland v. Garrison, 480 U.S. 79, 84 (1987). P. 41(b). In Berger v. New York,8484. On the iPhone it's called "Location Services". Geofence warrants are a relatively new but rapidly expanding phenomenon. GRAND RAPIDS, Mich. Geofence warrants are helping law enforcement agencies solve crimes using your cell phone's location data. 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. Judicial involvement in the warrant process has long been justified on the basis that judges are neutral and detached5151. After pressure from activists, Google revealed in a press release last week that it had granted geofence warrants to U.S. police over 20,000 times in the past three years. Use of this site constitutes acceptance of our User Agreement and Privacy Policy and Cookie Statement and Your California Privacy Rights. 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. Id. at *5 n.6. In re Leopold to Unseal Certain Elec. To leave probable cause determinations to officers would reduce the [Fourth] Amendment to a nullity and leave the peoples homes secure only in the discretion of police officers.5454. The report shows that requests have spiked dramatically in the past three years, rising as much as tenfold in some states. The results were stunning. Google uses its stored location data to personalize advertisements, estimate traffic times, report on how busy restaurants are, and more. The geofence warrants served on Google shortly after the riot remained sealed. Though admittedly an open question, Google has advocated that they are,2828. and geographic area delineated by the geofence warrant. See Google Amicus Brief, supra note 11, at 5. including Calendar, Chrome, Drive, Gmail, Maps, and YouTube, among others.4545. 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. While geofence warrants are a fairly new tactic, surveillance of Black activists is not. Through the use of geofence warrants (also known as reverse location warrants), federal and state law enforcement officers are routinely requesting that Google search users' accounts to determine who was in a certain geographic area at a particular timeand then to track individuals outside of that initially specific area and time period. ; see, e.g., Search Warrant, supra note 5. North Carolina,1717. 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. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. the Court found no probable cause to search thirty blocks to identify a single laundromat where heroin was probably being sold.116116. To assess only the former would gut the Fourth Amendments warrant requirements. 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. One such feature is Apple's proposed child sexual abuse material detection (CSAM . 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 It also means that with one document, companies would be compelled to turn over identifying information on every phone that appeared in the vicinity of a protest, as happened in Kenosha, Wisconsin during a protest against police violence. It should be a last resort, because its so invasive.. See Brief of Amicus Curiae Google LLC in Support of Neither Party Concerning Defendants Motion to Suppress Evidence from a Geofence General Warrant at 1112, United States v. Chatrie, No. Lower courts have disagreed over whether Carpenter was a narrow decision, see, e.g., United States v. Contreras, 905 F.3d 853, 857 (5th Cir. ; Products, supra. If you have a warrant you need, or a template you feel would be good to add please email shortb@jccal.org. See, e.g., Jones, 565 U.S. at 417 (Sotomayor, J., concurring); United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2013), vacated, 800 F.3d 559 (D.C. Cir. Id. and probable cause for an apartment does not justify a search next door.120120. Id. Rather than waiting for challenges to geofence warrants to percolate and make their way up the court system,180180. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. With permission from a judge, they allow law enforcement to obtain anonymized data from Google from almost any device that was in a certain geographic . and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. It is the essential source of information and ideas that make sense of a world in constant transformation. 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. (June 14, 2020, 8:44 PM), https://www.wsj.com/articles/how-political-groups-are-harvesting-data-from-protesters-11592156142 [https://perma.cc/WEE5-QRF2]. Russell Brandom, Feds Ordered Google Location Dragnet to Solve Wisconsin Bank Robbery, The Verge (Aug. 28, 2019, 4:34 PM), https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi [https://perma.cc/JK5D-DEXM]. Going to cell phone providers is a bit tricky, thanks to the Supreme Cou Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Although the Court in Carpenter recognized the eroding divide between public and private information, it maintained that its decision was narrow and refused to abandon the third party doctrine.3838. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. In other words, the characterization of a geofence warrant as a search in the first place likely relies in part on the prevalence of cell phones. The Places Searched. Google Amicus Brief, supra note 11, at 13. Emily Glazer & Patience Haggin, Political Groups Track Protesters Cellphone Data, Wall St. J. courts have suggested as much,2929. 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. The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. 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. 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. Mobile Fact Sheet, Pew Rsch. Despite Molina having an alibi confirmed by multiple witnesses and the fact that the same location data impossibly placed him in multiple locations at the same time on numerous occasions, the police arrested him, locked him in jail for six days, and informed dozens of media outlets that he was the suspect in a highly publicized murder case.77. About a month after the robbery, state law enforcement officials obtained a geofence warrant from . at *8. Id. The Things Seized. See Arson, 2020 WL 6343084, at *10; Pharma II, 2020 WL 4931052, at *1617; Pharma I, 2020 WL 5491763, at *6. Facebook has also publicly denounced the use of geofence warrants, with a spokesperson outwardly supporting the bill. United States v. Ross, 456 U.S. 798, 824 (1982). 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). and reviled tools in law enforcement agencies digital toolbox. Surveillance Applications & Ords., 964 F.3d 1121, 1129 (D.C. Cir. The Fourth Amendment provides that warrants must particularly describ[e] the place to be searched, and the persons or things to be seized.158158. "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. Berger, 388 U.S. at 57. The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. 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. Cf. 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. A general warrant is simply an egregious example of a warrant that is too broad in relation to the object of the search and the places in which there is probable cause to believe that it may be found.128128. Both iPhone and Android have a one-click button to tap that disables everything. 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. See Skinner v. Ry. 18 U.S.C. In Pharma I, the requested geofence spanned a 100-meter radius area within a densely populated city during several times in the early afternoon, capturing a large number of individuals visiting all sorts of amenities associated with upscale urban living.152152. Instead, it is enough if the description is such that the officer with a search warrant can with reasonable effort and presumably relying on expertise and experience ascertain and identify the place intended.162162. See, e.g., In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson), No. Which UI design tool should I use in 2020? 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 Google Amicus Brief, supra note 11, at 14. Laperruque argues that geofence warrants could have a chilling effect, as people forgo their right to protest because they fear being targeted by surveillance. at 117. 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. These reverse warrants have serious implications for civil liberties. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020). 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. the Supreme Court emphasized that the traditional rule that an officer [can] not search unauthorized areas extends to electronic surveillance.8585. 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. Id. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. probable causes exact requisite probability remains elusive. . Jason Leopold & Anthony Cormier, The DEA Has Been Given Permission to Investigate People Protesting George Floyds Death, BuzzFeed News (June 3, 2020, 6:28 PM), https://www.buzzfeednews.com/article/jasonleopold/george-floyd-police-brutality-protests-government [https://perma.cc/JM8U-BE4U]. Geofence warrants enable the government to conduct sweeping searches of cell phone location data for any phone that enters a predefined geographical boundary, or geofence, during limited time frames.2 The rising While probable cause forces the government to prove that the need to search is greater than any invasion of privacy,133133. Geofence warrants: How police can use protesters' phones against them. Google now gets geofence warrants from agencies in all 50 states, Washington, D.C., and the . If, instead, step two constitutes the search, law enforcement should not be able to seek additional location information about any users provided without either an additional warrant or explicit delineation of this second search in the original warrant. The fact that geofence warrants capture the data of innocent people is not, by itself, a problem for Fourth Amendment purposes since many technologies such as security cameras do the same. 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. It should be a last resort, because its so invasive.. In keeping with Google's established approach, the Geofence Warrant described a three-step process by which law . (N.Y. 2020). But a warrant does not need to describe the exact item being seized,160160. 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 531, 551 (2005) (emphasis added). 14, 2018). and the Supreme Court has maintained that warrants are generally preferred.3030. Take a reasonably probable hypothetical: In response to the largest set of geofence warrants revealed to date, Google provided law enforcement with the location for 1,494 devices. Geofence warrants are amongst the many new ways policing has . 27 27. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). 2017). Servers Controlled by Google, Inc., No. 2012). 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. Lab. Law enforcement . To perform this function, the geofencing app accesses the real-time location data sent by the tracked device. In the past, the greatest protections of privacy were neither constitutional nor statutory, but practical.176176. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). all of which at least require law enforcement to identify a specific suspect or target device. Clayton Rice, K.C. . at 57. Google Amicus Brief, supra note 11, at 13. The memorandum was obtained by journalists at BuzzFeed News. July 14, 2020). Minnesota law enforcement has already turned to geofence warrants to identify protesters,109109. zS 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. IV. Googles (or any other private companys) internal methods for processing geofence warrants, no matter how stringent, cannot make an otherwise unconstitutional warrant sufficiently particular. 1. This secrecy prevents the public from knowing how judges consider these warrants and whether courts have been consistent, increasing the need for not only transparency but also uniformity in applying the Fourth Amendment to geofence warrants. Eighty-one percent have smartphones. Angela Lang/CNET. Id. In other words, because probable cause ensures that any intrusion on privacy is justified by necessity, it considers whether there is a probability that evidence of illegal activity will be found in a specific area.149149. Geofence warrants issued to federal authorities amounted to just 4% of those served on Google. and not find a cell phone on the person,142142. 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.