by Anthony W. Accurso
Since a New York Times articlein 2019 broke the news that Google’s Sensorvault database stores location information from hundreds of millions of devices worldwide, we have also learned that law enforcement have been increasingly reliant on this data to help solve crimes. Just how reliant they are on this data is now available.
Since Google is the only company that has been able to amass this much location data from the devices of so many users, they are the only company police are turning to at an alarming rate to try and solve certain crimes. The company has been reluctant to release statistics on these law enforcement requests, known as “geofence warrants” or “reverse warrants,” until very recently.
Standard warrants allow police to legally invade a person’s constitutionally protected privacy right but only after police demonstrate to a neutral magistrate that evidence of a crime is likely to be discovered in a particular location. Even then, these authorized searches must be narrowly tailored to impinge only upon the privacy of the suspect(s).
However, geofence warrants work backwards. Police apply for a warrant requiring Google to produce location records for all the devices that were near where a crime occurred. Police then work backwards from this data, trying to isolate devices belonging to the likely perpetrator(s).
This is problematic because it almost always involves compromising the privacy of vast numbers of innocent persons in the area under scrutiny, and it rests upon the flawed assumption that the criminal was using a device that reported its location to Google during the commission of the crime. Several innocent people have been wrongly accused simply because they were literally in the wrong place at the wrong time.
Incidences of prosecutorial errors like this are likely to become even more frequent too. Google reported receiving just 982 geofence warrants in 2018. But this number jumped to 8,396 in 2019 and 11,554 in 2020. Federal law enforcement accounted for a mere 4% of these requests, with state and local police making up the vast majority of requests.
Due to the volume of requests, Google has “developed a process specifically for these requests that is designed to honor [its] legal obligations while narrowing the scope of data disclosed,” according to Google spokesperson Alex Krasov.
This points to the fact that, despite some notable exceptions, magistrate judges are approving thousands of legally dubious warrants each year—essentially rubberstamping any request made by police—that Google has little choice but to comply with.
Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project (“STOP”), has led efforts to have Google disclose statistics on these warrants but is also working with other activists and lobbyists to outlaw this practice entirely. New York state lawmakers proposed a ban last year, but no jurisdiction has outlawed geofence warrants yet.
“Geofence warrants are unconstitutionally broad and invasive, and we look forward to the day they are outlawed completely,” said Cahn.
Sources: techdirt.com, techcrunch.com
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