by Michael Dean Thompson
The breaching of the Capitol on January 6, 2021, shocked many Americans. Government filings uncovered since then suggest that even as the unrest raged, law enforcement had begun filing geofence warrants. We now understand that 1,535 names associated with phones using Google’s Location History technology were handed over to the FBI as suspects. Despite the secrecy surrounding it, the scale of the project of mining the names of citizens appears to be unprecedented. By the end of September 2021, at least 185 had been charged, and 600 people arrested. By December of 2022, the number of people prosecuted had risen to almost 900.
The location data acquired by the Google geofence was just the beginning. With that in hand, they were able to acquire phone numbers, email addresses, and even metrics like the last time the phone was accessed. Some people attempted to place their phones in airplane mode or delete their location data. Those accounts garnered additional investigator scrutiny as it was seen as an attempt to hide their activities.
The true scope of the datamining will likely remain unknown for years. Google remains mum on much of it because the warrants come with gag orders that make it difficult for us to learn just exactly what investigators are seeking. Unfortunately, the law that covers geofencing warrants precedes smartphone, cloud services, and GPS. Nevertheless, Google does require law enforcement to take some steps to acquire the data via warrants. Their framework was co-developed by the Computer Crime and Intellectual Property Sections (“CCIPS”) and has been accepted by most courts.
David Rhine was identified as one of the people on the Capitol grounds by tipsters, though he was only located on video surveillance after the FBI acquired his coordinates within the geofence data. We know of Rhine because his attorney attempted to have the data tossed because the warrant was overbroad. The D.C. District Court, however, found on January 24, 2023, that the geolocation warrant issued to Google “was supported by particularized probable cause, and regardless that its alleged infirmities would fall under the good faith exception to the exclusionary rule, so suppression is unwarranted in this case.” The good faith exception in this case is a catch-all that essentially declares that a cop who does not know that a particular warrant runs afoul of the Fourth Amendment and executes a search based on the defective warrant has done in “good faith,” so the evidence acquired can still be used against the suspect.
According to court documents, Google responded to the initial request from the FBI with two control lists, coming from time periods on either side of the unrest, which were used to strike out any devices that were also on the primary list. The assumption being that the device was likely someone who worked there or was a member of the Capitol police. The government then returned to Google with the new list demanding the account information of the device owners. For 70 devices, the government concluded that their location data was likely wiped based upon yet another list resulting in their inclusion in the identification demand.
The geofence does not appear to have included the entirety of the Capitol grounds. Rather, it focused only on a rectangle that roughly identified the Capitol building. Using a mix of GPS, WiFi, and Bluetooth data, Google identified people who they said had a 68% chance or better of being within the prescribed area.
It is apparent that given the 68% probability, not everyone ensnared in the Google geofence actually entered the Capitol. Conversely, not all individuals who entered the Capitol used Google products, though Google is not the only source of geolocation data. Secrecy surrounding the depth and breadth of the probes of private data stored on corporate platforms inconceivable during the formation of the 1986 Stored Communications Act mean that we will be kept in the dark for much longer and can only rely on corporations and the courts to protect our privacy. Good luck with that – we’ll need.
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