The Mounting Geofencing Threat
by Michael Dean Thompson
The January 6th Capitol riot illustrates how geofencing warrants are threatening American citizens. As part of the investigations into the events, the FBI served a geofencing warrant to Google that demanded a list of all the devices in or near the Capitol during the attack. An astounding 5,273 devices were identified within that geographic area and time period.
Some names were then culled from the list as likely belonging to Capitol staff and police officers. Since some of the people found were near the border of the geofence, those persons not entirely inside the bounds – within a “70 percent probability” – were also excluded. The remaining 1,535 names were given to the FBI. Some of those people had placed their phones in airplane mode. Another group “attempted to delete their location data” afterwards. Others had turned their phones off. Those attempts to hide themselves earned additional scrutiny by the FBI while also being notably ineffective.
Geofencing warrants such as these bear a strong resemblance to a general warrant, which “‘specifie[s] only an offense’ leaving ‘to the discretion of the executing officials the decision as to which persons should be arrested and which places should be searched.” By giving only a location of a potential crime, geofencing warrants may run afoul of the Fourth Amendment that was designed to prevent general warrants by requiring “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons to be seized.”
While geofencing warrants are relatively new, their frequency of use has exploded over recent years as cops find new ways to use them. “Between 2017 and 2018, the number of geofence warrants issued to Google increased by more than 1,500 percent between 2018 and 2019, over 500 percent.” That number continues to increase to the point that by the summer of 2022 Google claimed geofencing warrant requests represent a quarter of all legal documents it receives.
It is not difficult to imagine scenarios where even in the January 6th Capitol madness, geolocation data can falsely identify people for an investigation. Two friends might have gone together simply to “support their President.” One, in an entirely random act, halts near the invisible geofence border that had not yet been defined after handing her phone to her friend to show some tweet or image. The friend does not stop but carries it on into the Capitol. There are an infinite number of variations on the thought experiment that result in the first friend being investigated, possibly even convicted, all due to the location of her phone as damning evidence.
In Kenosha, Wisconsin, after the summer of 2021, the Bureau of alcohol, Tobacco, Firearms, and Explosives issued a series of geofencing warrants, ostensibly to find rioters responsible for property damage during the protests. How many innocents were swept into the investigation, only to be frightened away from further participation in future protests?
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login