New Digital Warrants Undermine Fourth Amendment
by Anthony W. Accurso
Two relatively new types of warrants are causing a stir among privacy advocates and defense attorneys who claim the warrants are overbroad and jeopardize the spirit of the Fourth Amendment’s protections.
“Geofence” or “reverse” warrants involve police obtaining a warrant to obtain location information, stored at companies like Google or Facebook, to identify persons who were nearby when a crime was committed.
“Keyword search” warrants involve requests to tech companies but instead seek data on users who searched for terms or phrases like “arson” or “how to avoid police.”
Both of these kinds of warrants are becoming the new go-to tools during investigations of crimes, and they are now possible because of how tech companies store and index user data for advertising purposes.
These warrants differ from traditional warrants for a reason other than their digital nature: they allow law enforcement to gather information about a great many people’s activities—most of whom are innocent persons. When making these requests, police aren’t even relatively certain that the criminal they are looking for will be found in the data requested, yet police often choose suspects only from the pool of identities returned by the companies.
In the past, the U.S. Supreme Court has required officers to obtain a warrant when requesting information about a person’s private activities, and all warrants must be narrowly constructed not to jeopardize the privacy of persons unrelated to the crime being investigated. However, with these new warrants, police have some hunch, and they’re asking companies to give them a pool of “suspects” to investigate.
Google recently released statistics showing a dramatic increase in the number of geofence warrants received from police, jumping from 982 in 2018 to 11,554 in 2020. Google processes so many requests that another company, Hawk Analytics, has put together a platform—which uses Google’s API’s—to give police access to “everything Google,” including “what’s available, how to get it, and what to do with it, with an emphasis on the Google geofence reverse location returns.”
Google spokesperson Genevieve Park said the company is bound by law to honor law enforcement warrants—including non-disclosure provisions preventing it from notifying users about the warrants—though it attempts to “narrow the scope of data disclosed.” These legal obligations apply in all countries where these tech companies operate, including in countries with oppressive regimes.
While legislators in New York have proposed banning geofence warrants, and other lawmakers have considered bans on other sweeping digital surveillance tools (like cell-site simulators), there is currently no law or legal precedent preventing companies from disclosing such data. When judges deny these warrants for being overbroad, police often narrow the request a little and try to get the revised warrant past a different judge.
Though the big tech companies are often the ones served with these warrants, even smaller companies now collect vast amounts of user data, and these smaller companies are often unwilling or unable to effectively “narrow” requests from police.
Apple received plaudits from privacy experts for refusing to put a software vulnerability in their phones to aid in the investigation of the 2015 San Bernardino mass shooting, but it came under fire for their proposed child sexual abuse material (“CSAM”).
According to The Guardian, “[o]nce Apple begins scanning and indexing the photos of anyone who uses its devices or services, however, there’s little stopping law enforcement from issuing search warrants or subpoenas for those images in investigations unrelated to CSAM.”
This kind of mission creep for new features is common in the intersection of technology and law enforcement intrusion. It won’t be long before a program like Apple’s CSAM feature is exploited by police in various expected as well as unforeseen ways.
“We can’t ignore that these technologies are sold within legal regimes where if you create a tool to address one set of crimes,” remarked Albert Fox Cahn of the Surveillance Technology Oversight Program, “you can’t then refuse when governments are forcing you to use them to identify other sorts of crimes like political dissent and religious expression.”
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