merely by asking private companies. 13, 2019), https://nyti.ms/2DnN7KT [https://perma.cc/P5N3-4HSD]. 591, 619 (2016) (explaining that probable cause requires the government to show a likely benefit that justifies [the searchs] cost). Ng, supra note 9. 2010); United States v. Reed, 195 F. Appx 815, 822 (10th Cir. Just., Summer 2020, at 7. at 480. to find evidence whether by chance or other means.118118. That is because Apple doesn't store location data in a format . 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. Geofence warrants are sometimes referred to as reverse location warrants. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. (asking whether, if you are trying to text somebody who is simultaneously texting someone else, you will get a voice mail saying that your call is very important to us; well get back to you). . and the time period at issue (the wee hours of the morning. To revist this article, visit My Profile, then View saved stories. P. 41(e)(2). Geofence warrants rely on the vast trove of location data that Google collects4242. Google Amicus Brief, supra note 11, at 13. 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. This Note presumes that geofence warrants are Fourth Amendment searches. To assess only the former would gut the Fourth Amendments warrant requirements. But a warrant does not need to describe the exact item being seized,160160. Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. Police charged a man with robbery of the bank a year earlier after accessing phone-location data kept by Google. Google Amicus Brief, supra note 11, at 3. . and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. In contrast, officers are engaged in the often competitive enterprise of ferreting out crime.5353. Just., Summer 2020, at 7. and gives officials fair leeway for enforcing the law in the communitys protection.135135. ; Fed. 19-cr-00130 (E.D. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. Even more strikingly, this level of intrusion is often conducted with little to no public safety upside. Between 2017 and 2018, Google saw a 1,500% increase in geofence requests. In Wong Sun v. United States,115115. See, e.g., Affidavit for Search Warrant at 23, United States v. Chatrie, No. In listing the things to be seized, a warrant must list all the data that law enforcement intends to collect throughout the entirety of Googles process, which includes, at least, the latitude/longitude coordinates and timestamp of the reported location information of each device identified by Google in step one.173173. The geofence is . Courts have long been reluctant to forgive the requirements of the Fourth Amendment in the name of law enforcement,113113. at *7. ) 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). Similarly, with a keyword warrant, 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 subsequent decisions, the Court reinforced the notion that probable cause for a single physical location cannot be widely extended to nearby places. Rep. 1075 (KB). 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]. Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. 1. Id. 20 M 392, 2020 WL 4931052, at *45 (N.D. Ill. Aug. 24, 2020). Because this data is highly sensitive, especially in the aggregate, a description of the things to be seized is critical to framing the scope of warrants, which judges are constitutionally tasked to review. 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 figures, published Thursday, reveal that Google has received thousands of geofence warrants each quarter since 2018, and at times accounted for about one-quarter of all U.S. warrants that . First, officers had established the existence of coconspirators using traditional surveillance tools.155155. 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. Riley v. California, 573 U.S. 373, 385 (2014). Second, the areas encompassed were drawn narrowly and mostly barren, making it easier for individuals to see across large swaths of the area.156156. and geographic area delineated by the geofence warrant. Why is this size of area necessary? The WIRED conversation illuminates how technology is changing every aspect of our livesfrom culture to business, science to design. the Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and requires that warrants be issued only upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4949. Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. 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. 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. Location History Records. July 14, 2020). Elm, supra note 27, at 13; see also 18 U.S.C. Apple, Uber, and Snapchat have . The key to writing Chatrie compliant geofence warrants is a narrow scope and particularized probable cause. Some have suggested that geofence warrants should be treated like wiretaps. Brewster, supra note 14. To allow officials to request this information without specifying it would grant them unbridled discretion to obtain data about particular users under the guise of seeking location data.175175. at 221718; Jones, 565 U.S. at 429 (Alito, J., concurring); id. 25102522, which would require law enforcement to establish necessity. Which UI design tool should I use in 2020? The warrant itself must be particular when presented to a judge for review163163. Every DJI quadcopter broadcasts its operator's position via radiounencrypted. (May 31, 2020). Groh v. Ramirez, 540 U.S. 551, 561 (2004). Carpenter, 138 S. Ct. at 2218. checking the whereabouts of millions of innocent people across the globe just to rule them in as suspects, without producing any evidence about which people, if any, were anywhere near the crime scene. See, e.g., Stephen Silver, Police Are Casting a Wide Net into the Deep Pool of Google User Location Data to Solve Crimes, AppleInsider (Mar. . . Although these warrants have been used since 20162626. 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. many do not.7474. [vi] In current practice, Google requires law enforcement to obtain a single search warrant. Similarly, the Court has explained that the purpose of the particularity requirement is not limited to the prevention of general searches.125125. The geofence warrants served on Google shortly after the riot remained sealed. 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. 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's What You Need to Know about Battery Health Management in Catalina. It is, however, unclear how Google determines whether a request is overly broad. and has developed a [three]-step anonymization and narrowing protocol for when it does respond to them.6868. Id. 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. P. 41(e)(2) (providing a more flexible process for seeking electronically stored information). On the other hand, there is a strong argument that the third party doctrine which states that individuals have no reasonable expectations of privacy in information they voluntarily provide to third parties3535. Google provides the more specific informationlike an email address or the name of the account holderfor the users on the narrower list. A geo-fence warrant (also known as a geofence warrant or a reverse location warrant) is a search warrant issued by a court to allow law enforcement to search a database to find all active mobile devices within a particular geo-fence area. . A single geofence request could include data from hundreds of bystanders. If they are not unconstitutional general warrants because the searched location data is confined to a particular space and time, courts should evaluate whether a warrant is supported by probable cause with respect to that area. No. 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. 531, 551 (2005) (emphasis added). If a geofence warrant is a search, it is difficult to understand why the searchs scope is limited to step two and does not include step one. As it pertains to law enforcement, geofencing begins with officers defining an area of interest and a time period. about cell phone usage. Clayton Rice, K.C. Others ask for lists of all implicated users, their phone numbers, IP addresses, and more.6666. Geofence warrants are popular. 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. Heads of Facebook, Amazon, Apple & Google Testify on Antitrust Law, C-Span, at 1:36:00 (July 29, 2020), https://www.c-span.org/video/?474236-1/heads-facebook-amazon-apple-google-testify-antitrust-law [https://perma.cc/3MFB-LNH5]. Jake Laperruque, Project on Government Oversight, Torn between the latest phones? R. Crim. courts have suggested as much,2929. 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. The company then gathers information about all the devices that Courts have already shown great concern over technologies such as physical tracking devices,9797. The back-and-forth that law enforcement and private companies often engage in, whereby officials ask companies for additional location information beyond the scope of the approved warrant, raises distinct concerns. The greater the privacy interest, the more stringent the particularity requirement.159159. 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. The Court found that the warrant at issue lacked particularized probable cause to search all . 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. For an overview of deference to police knowledge, see generally Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. The first is a list of anonymized data from the phones in the . Lamb, supra note 5. Oops something is broken right now, please try again later. 18 U.S.C. This rummaging and the general [a]wareness that the government may be watching chills associational and expressive freedoms.106106. Location data is inextricably tied to the freedoms of speech and association. The Places Searched. 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. New Resources Available for Password Manager Apps. 1995 (2017). Now, a group of researchers has learned to decode those coordinates. Torres v. Puerto Rico, 442 U.S. 465, 471 (1979). 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. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley v. California, 573 U.S. 373, 403 (2014). 561 (2009). AlphaBay was the largest online drug bazaar in history, run by a technological mastermind who seemed untouchableuntil his tech was turned against him. Law enforcement investigators have also made geofence requests to tech companies including Apple, Snapchat and Uber. As a result, and because Google has recently revealed how it processes these warrants, this Note discusses Google in particular detail, though it functions as a stand-in for any company that collects and stores location data. . 20-cv-4688 (N.D. Cal. But geofence warrants do exactly that authorizing broad searches of entire location history databases, simply on the off chance that somebody connected with a crime might be found. 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. Meg OConnor, Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder, Phx. See, e.g., Information Requests, Twitter (Jan. 11, 2021), https://transparency.twitter.com/en/reports/information-requests.html [https://perma.cc/8UCA-8VK5]; Law Enforcement Requests Report, Microsoft, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report [https://perma.cc/ET8L-TL9C]; Transparency Report: Government Requests for Data, Uber (Sept. 22, 2020), https://www.uber.com/us/en/about/reports/law-enforcement [https://perma.cc/M9J4-YKT6]. See United States v. Jones, 565 U.S. 400, 402 (2012); United States v. Karo, 468 U.S. 705, 709, 717 (1984). 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. Thus, the conclusion that a geofence warrant involves a search of location data within certain geographic and temporal parameters, rather than a general search through a companys database, should be the beginning, not the end, of the analysis.129129. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. Ct., 387 U.S. 523, 537 (1967); see also Orin S. Kerr, An Economic Understanding of Search and Seizure Law, 164 U. Pa. L. Rev. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. Geofence warrants are a relatively new but rapidly expanding phenomenon. [-~P?42r%gS(_: Indeed, users proactively enable location tracking,3636. 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). They sometimes approve warrants in a few minutes5555. Pharma II, No. at *1. 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. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications).