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EFF To Google: Stop Rolling Over For Law Enforcement 'Geofencing'

With a market capitalization as of August 2021 of over $1.8 trillion, Alphabet—the parent company of Google—is worth more than the annual economic output of all but nine countries. The firm, which unlocks the Internet to most U.S. users, has built its business in large part on a commitment to protecting their privacy. So when law enforcement agents come knocking on its door, looking for users' data, the company says "no," unless the government comes armed with a search warrant.

Increasingly, though, government agents are presenting the firm with a special type of search decree known as a geofence warrant—a court order instructing the company to sift its users' data through a geographic sieve in an attempt to see, for example, who was in the vicinity of a crime scene before, during and after the time the crime was committed.
Legal scholars say these "reverse location" warrants are of dubious constitutionality, at best. In protecting U.S. citizens from "unreasonable search and seizure," the Fourth Amendment explicitly prohibits a common British court decree called a general warrant. Loathed in colonial times, it empowered agents of the crown to search its subjects and their possessions for almost anything, anytime.

So with that history in mind, shouldn't Google be saying 'no' to geofence warrants in the U.S., too?

In an August 12, 2021, essay on the Electronic Frontier Foundation (EFF) website, Senior Staff Attorney Aaron Mackey and Surveillance Litigation Director Jennifer Lynch argue that it's time for the Internet behemoth to do it just that.

They point to the example of a 2020 geofence warrant obtained by Florida cops trying to solve a burglary at the home of a 97-year-old woman. They presented the warrant to Google, which turned over non-identifying data on users it had tracked in the vicinity at the time of the crime.

One of them was an avid biker named Zachary McCoy, who tracked his rides using a Google-connected app called RunKeeper. Because the app's history repeatedly placed him in the vicinity of the crime scene, he had become a suspect even though he was wholly innocent. So Google notified him it was turning over his name to law enforcement agents unless he got a court order to stop them. He had just seven days.

McCoy "was hit with a really deep fear," he said—especially after he did some sleuthing through online police reports and found out about the burglary nearby. Then he checked the app on his phone, which showed he had passed the address three times that day on his regular ride. His fear then turned to action: He found an attorney, who filed a motion in court to block the request. The government then backed off.

'It was a nightmare scenario," McCoy said. "I was using an app to see how many miles I rode my bike, and now it was putting me at the scene of the crime. And I was the lead suspect."

Geofence warrants like this are becoming more common, Google says. It won't say how many it's received, but there were 1,500 percent more of them in 2018 than the year before, and the number shot up another 500 percent the following year. That's why EFF has its list of demands for Google:

  • Stop complying with geofence warrant requests; just saying "no," as McCoy's case proves, may well be sufficient to end a government "fishing expedition;"
  • Improve transparency about the requests it answered: how many, from whom and for what, as well as the number of users whose data was swept up in each;
  • Provide notice to all affected users—not just those whose names are later requested by law enforcement, since by that point there may be minimal time to go to court to stop it, as McCoy's example illustrates;
  • Give users better control over their data; clicking an "I agree" button at the end of a pages-long legal agreement that no one reads does not constitute meaningful acceptance, as at least one judge—in a case involving Facebook—has recognized.

As the authors conclude, "Google needs to stand up for its users when it comes to revealing their sensitive data to law enforcement."


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