In re Leopold to Unseal Certain Elec. Law enforcement . Third, and finally, Google provides account-identifying information, such as the first names, last names, and email addresses of the users.7676. Representative Kelly Armstrong suggested that geofence warrants should be considered contents within the Electronic Communications Privacy Act of 1986 (ECPA), Pub. 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). In others, police have targeted the wrong man, or retrieved data on more than 1,000 phones going through the area, raising concerns about how innocent people can be affected by such warrants. . and balances two competing interests. While geofence warrants are a fairly new tactic, surveillance of Black activists is not. The size of the area may vary. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) it is reasonable to believe that the perpetrators phone data can be found in these records. . 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. CSLI,9999. R. Crim. Never fearcheck out our. Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. A person does notand should notsurrender all Fourth Amendment protection by venturing into the public sphere.187187. about cell phone usage. Google received more than 20,000 geofence warrants in the US in the last three calendar years, making up more than a quarter of all warrants the tech giant received in that time . IV. Geofence warrants , or reverse-location warrants, are a fairly new concept. Often, warrants remain sealed and criminal defendants never find out that these warrants played a role in their convictions. P. 41(d)(1), (e)(2). Servers Controlled by Google, Inc., No. L. Rev. and the Drug Enforcement Administration was given broad authority to conduct covert surveillance of protesters.108108. 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. 636(a)(1); Fed. Geofencing itself simply means drawing a virtual border around a predefined geographical area. Lamb, supra note 5. They use a technique called "geofencing", which takes location data and draws a virtual border around a predefined geographical area. at *5. They are paradigmatic dragnets that run[] against everyone.104104. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. report. The Court found that the warrant at issue lacked particularized probable cause to search all . Rep. at 496. on the basis that it did not specify the items and suspects to be searched, thereby giving overly broad discretion to law enforcement, a result totally subversive of the liberty of the [search] subject.9494. 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. Sixty-seven percent of smartphone users who use navigation apps prefer Google Maps. 13, 2019), https://nyti.ms/2DnN7KT [https://perma.cc/P5N3-4HSD]. ([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. The Things Seized. Last year alone, the company received over 11,550 geofence warrants from federal, state, and local law enforcement. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). Zachary McCoy went for a bike ride on a Friday in March 2019. L.J. The greater the privacy interest, the more stringent the particularity requirement.159159. Memorandum from Timothy J. Shea, Acting Admr, Drug Enft Admin., to Deputy Atty Gen., Dept of Just. Congress must engage in proactive legislation as it has done with other technologies181181. 2 (Big Hit Ent. Google Amicus Brief, supra note 11, at 3. 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 cavalier with users' data and enabling large-scale government surveillance. But geofence warrants take it a step farther, looking for suspects in the absence of leads, casting a wide net without clues, and pursuing a person they don't already suspect. . % Chrome is not limited to mobile devices running the Android operating system and can also be installed and used on Apple devices. Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. See generally Orin Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257 [https://perma.cc/BDR5-6P6T]. U.S. v. Rhine, a decision issued two weeks ago by the federal district court for the District of Columbia, denying a January 6 . (May 31, 2020). at 13. 2. Other tech companies, such as Uber, Lyft, Snapchat, and Apple have previously been approached for location data requests but they were unsuccessful. 2020) (quoting Corrected Brief for Appellee at 28, Leopold, 964 F.3d 1121 (No. and Apple said . Surveillance footage showed that the perpetrator held a cell phone to his ear before he entered the bank. When law enforcement seeks CSLI associated with a particular device, it merely asks for information that phone companies already collect, compile, and store.7878. . Riley v. California, 573 U.S. 373, 403 (2014) (internal quotation marks omitted); see also Marshall v. Barlows, Inc., 436 U.S. 307, 311 (1978) (describing historical opposition to general warrants); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); Stanford, 379 U.S. at 48184. Last year, advocates from the New York Civil Liberties Union, the Surveillance Technology Oversight Project, and a host of other organizations began working with New York state senator Zellnor Myrie and assemblymember Dan Quart to pass the "reverse location and reverse keyword search prohibition act," the nations first proposed ban on geofence warrants. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". In that case, the . Id. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). Cf. Prosecutors declined to comment. However, wiretaps predict future rather than past criminal conduct, see United States v. Grubbs, 547 U.S. 90, 95 (2006), and thus raise different concerns with respect to probable cause and particularity. A single geofence request could include data from hundreds of bystanders. OConnor, supra note 6. Just this week, Forbes revealed that Google granted police in Kenosha, Wisconsin, access to user data from bystanders who were near a library and a museum that was set on fire last August, during the protests that followed the murder of George Floyd. Jake Laperruque, Project on Government Oversight, Torn between the latest phones? But in practice, it is not that clear cut. 3d 37, 42 (D. Mass. L. Rev. 2016) (en banc). 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. For an overview of the Fourth Amendment at the Founding, see generally Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. at 1128 (quoting EEOC v. Natl Child.s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. See United States v. Jones, 565 U.S. 400, 402 (2012); United States v. Karo, 468 U.S. 705, 709, 717 (1984). Google and other private companies act[] as. Id. Redding, 557 U.S. at 370; see also Harris, 568 U.S. at 243; Ornelas v. United States, 517 U.S. 690, 696 (1996); Brown, 460 U.S. at 742 (plurality opinion); Brinegar, 338 U.S. at 17576. applies to these warrants. 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. between midnight and 3:00 a.m.), which further limited the warrants scope.171171. Ng, supra note 9. See Smith v. Maryland, 442 U.S. 735, 742 (1979); United States v. Miller, 425 U.S. 435, 442 (1976). New York,1616. Apple will only provide content in response to a search warrant issued upon a showing of probable cause, or customer consent. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172. 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]. The geofence warrants served on Google shortly after the riot remained sealed. That Made Him a Suspect., NBC News (Mar. Judicial involvement in the warrant process has long been justified on the basis that judges are neutral and detached5151. Google Amicus Brief, supra note 11, at 45. .). Two warrants included just a commercial lot and high school event space, which was highly unlikely to be occupied.167167. 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. No. The conversation has started and must continue in Congress.183183. See, e.g., Elm, supra note 27, at 11, 13. 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. and anyone who visits a Google-based application or website from their phone,4444. Instead, many warrant applications provide only the latitude and longitude of the search areas boundaries.5757. Texas,1818. 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 . 20 M 392, 2020 WL 4931052, at *18 (N.D. Ill. Aug. 24, 2020). While all geofence warrants provide a search radius and time period, they otherwise vary greatly. 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. 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).