Geofence Warrants and Privacy Rights

Protecting individual privacy from government intrusion, which our Fourth Amendment guarantees, has become increasingly challenged by the development of new technologies that collect massive quantities of data about our daily activities. Our phones and other devices can track where we are located, who we call, and what we are interested in or planning to do, and more, all of which could be useful information to a criminal investigation. While law enforcement has been increasingly interested and reliant on such technology and data for their investigations, they do rely on court orders to obtain a warrant for such information from the relevant technology companies. Unfortunately, as with many things involving complex and new technologies, judges are often in an uninformed position to be offering law enforcement the warrants they desire.

Geofence warrants are one of many examples of questionable and possibly unconstitutional warrants that law enforcement can use. In this article, we discuss what they are and the constitutional challenges they pose.

locations pinged on a world map, which can be gathered via geofence warrants

What is a Geofence Warrant?

A geofence warrant is a type of search warrant that law enforcement typically use when they do not have a suspect. They use a technique called “geofencing”, which takes location data and draws a virtual border around a predefined geographical area. The location data typically comes from Google, who collects data from their Android phone users (over 130 million Americans) and anybody who uses a Google-based application or website on their phone, such as Google Chrome, YouTube, Snapchat, and more. When there is a crime scene and limited information to identify an actual suspect, law enforcement may request a warrant for such information from the court for the time and place of the crime. The type of information requests can vary, but it is typically limited to location data and information about the device used. While this is not strictly “personal information”, it can be identifiable to a specific person using records that are available to law enforcement.

Despite geofence warrants generally being specific to time, location and data provided, they still tend to include a great deal of information on people who have nothing to do with the crime. Even a small geofence can include residential homes, churches, and schools with children. Many people, including minors, have smartphone devices, and even if you do not use an Android device, the likelihood that a Google or Google-based application is running on a persons phone while they have it is high.

Understanding the Fourth Amendment

To understand how these warrants can get past the Fourth Amendment, we should understand what the constitution requires for such a warrant to be granted. In short, the Fourth Amendment guarantees:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

For warrants, it requires that they only be issued:

upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Essentially, a judge must determine that a warrant application:

  1. Sufficiently established probably cause.
  2. Satisfies the requirement of particularity.

These are both complex elements that judges need to look at when issuing any warrant to law enforcement, which we discuss further below.

Probable Cause

Probably cause ensures that “no intrusion at all is justified without careful prior determination of necessity”. It exists to balance the interest of individual freedom and privacy with the government’s interest in security and preventing crime. Essentially, probably cause forces the government to prove that the “need to search” is greater than any invasion of privacy. However, this relies in a large part on police expertise and intuition, giving officers a “fair leeway for enforcing the law in the community’s protection.” Essentially, rather than there being a set standard of legal rules to probable cause, it is often dealt with on a case-by-case basis.

Many argue that this standard is too flexible and leans on the intuition of officers who are often biased and generally lacking in knowledge of legal precedent to determine whether their decision would be favored in court. Officials act with probably cause when they either:

  1. have reasonable belief that an offense is being committed.
  2. evidence of a crime is available in the place to be searched.

In the case of geofence warrants, officers believe to have the latter: a location and estimated time where and when a crime was committed, and the high probability that the person who committed the crime had a phone that was sending location information to Google.

Particularity

Particularity requires that warrants must describe the place to be searched and the persons or things to be seized in particular terms. This does not mean the warrant needs to describe the exact item or person they are looking for, but there should be a clear idea or scope of what they’re interested in finding and why.

For geofence warrants, the particularity is the coordinates of the geofence and time-frame for the data to request from Google or another private company. Where this differs, and is more problematic, than a physical search warrant, is that particularity for a physical warrant is reflected in both the application and information seized, but geofence are not. Google, or any other private company, cannot process a geofence warrant for an otherwise unconstitutional warrant sufficiently particular, as they are guaranteed to include mostly irrelevant information on many people who are not tied to the crime.

Why does the Fourth Amendment Matter?

The purpose of this amendment was to prevent “general, exploratory rummaging” from the government, which intrudes on people’s freedoms. The founding fathers understood that if people are aware that the government may be watching, this could interfere with their associations and expressive freedoms. They were not just theorizing government intrusion in the future, but making sure the “general warrant” that was allowed under British rule would not take place in the United States. These warrants allowed for exploratory interference into people’s homes and daily lives whenever law enforcement believed a crime took place around a certain area. Essentially, police had the right to invade people’s private property under a general warrant, even if they had no specific information that the person or their property was tied to the crime in question.

Many argue that a geofence warrant is the new form of a general warrant, as it can implicate all sorts of people in a crime they have nothing to do with. While it may not be as obviously invasive as intruding in your home, it does carry potential for offering the government an easy outlet for surveillance without having to obtain your consent and when you were obeying the law.

Will Geofence Warrants be Stopped?

There is little indication to suggest that courts will hold geofence warrants entirely unconstitutional any time soon, despite the Supreme Court’s recognition that intrusive technologies should trigger greater judicial scrutiny. This comes down to the nature of courts dealing with particular cases and circumstances, so they can set some precedent but every case is unique so law enforcement can always find novel reasoning to justify their warrants. It will have to come down to law makers in congress or to challenge these warrants and either heavily restrict them or bar them completely. While some state legislatures, such as in New York have been debating bills to ban these warrants, the interstate nature of location data requires federal intervention for effective legislation. The push must come from congress, but could be heavily influenced if tech giants across the country put up resistance and work alongside privacy activists to push congressional representatives to ban these warrants. Google has pushed back against some broader warrants, but in general has acquiesced to law enforcement demands. Other organizations, such as Microsoft and Garmin, have already stated that they would not comply with geofence warrants.

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