|
Law in the Internet Society
|
|
Geofence Warrants: Anyone Can Be a Suspect-- By ShahabPournaghshband - 22 Oct 2021Introduction to GeofencewarrantsGeofence warrants grant law enforcement agencies access to corporate location databases in an effort to identify and track individuals in the vicinity of a crime. Corporations, mostly notably Google, provide law enforcement with a list of individuals near a specific area at a requested time. Because geofence warrants are not targeted toward specific individuals but rather groups of individuals in a specific area during a certain timeframe, they are quite broad in scope. This can result in police intrusions of people who are “in the wrong place at the wrong time” – witnesses to or bystanders of criminal activity who become suspects of the crimes. Understandably, geofence warrants have raised serious Fourth Amendment concerns. A couple questions remain surrounding geofence warrants, especially because their constitutionality has not been subject to Supreme Court review. Are geofence warrants constitutional? And if so, what do they tell us about the increasing access to data available to government actors?How Do Geofencewarrants Operate?The case of Zachary McCoy? best illustrates the use of geofence warrants. McCoy? , an avid biker, would use a fitness-tracker app on his phone to keep records of his progress and endurance while biking. McCoy? eventually received an email from Google notifying him that unless he went to court and received an injunction, Google would be providing local law enforcement with data from his account. McCoy? ’s lawyer explained that law enforcement had sought a geofencewarrant in connection with a local burglary. McCoy? checked his fitness-tracker app and realized that he had coincidentally biked past the victim’s home numerous times the day of the burglary. Indeed, McCoy? was in the wrong place at the wrong time. And if he had not hired a lawyer and blocked the release of his data, this could have cost him his liberty. Geofence warrants are growing in popularity, and Google is not the only company to have worked with law enforcement. Snapchat and Facebook have complied, too. There was over a 1,500% increase in the number of geofence requests Google received in 2018 compared to 2017; “and to date, the rate has increased over 500% from 2018 to 2019.” In 2020, Google received over 11,000 geofence requests from law enforcement, amounting to over 25% of all data requests the company received from law enforcement. A couple years prior, one geofence warrant resulted in the disclosure of close to 1,500 individuals to federal authorities. If these warrants seem overbroad, it is because they are. Geofence warrants offer the perfect example of how advances in technology can often encroach on our notions of safety and privacy.Potential ResolutionsGoogle, in an amicus brief, has argued that geofence requests constitute Fourth Amendment searches. And because users have a reasonable expectation of privacy in their location history data, a warrant should be required for geofence requests. It seems that technology has completely shattered the privacy and security Americans at one point enjoyed. Fourth Amendment doctrine must adjust to these changes in technology, just as it did in Kyllo v. United States, where the Court held that thermal imaging of a home constitutes a Fourth Amendment search and thus requires a warrant. But are Courts the correct medium through which to bring these protections? Assembly Bill A84A? has been proposed in the New York State Legislature. The bill seeks to “[p]rohibit[] the search, with or without a warrant, of geolocation and keyword data of a group of people who are under no individual suspicion of having committed a crime, but rather are defined by having been at a given location at a given time or searched particular words, phrases, character strings, or websites.” While a court may hold that geofence requests require a warrant, legislatures have the ability to place an absolute bar on geofence activity. Additionally, this Bill would bar a similarly intrusive type of request: keyword requests. In a keyword request, law enforcement receives data on users who have recently searched specified terms. It is unclear when the constitutionality of these two practices will come before the Supreme Court; legislative action therefore seems more appropriate because legislatures can be more expedient and ensure wider protections for American citizens.ConclusionThe commoditization of our data by technology companies raises its own set of issues, but they pale in comparison to the dangers presented by the use of geofence warrants. Geofence warrants are a direct threat to one of our greatest constitutional values: the protection and safeguarding of personal liberty. And as technology continues to advance and become more ingrained into each aspect of society, we have greater reason to fear that our freedoms will ultimately be in the hands of those we have come to trust the most. Sources: https://www.nbcnews.com/news/us-news/google-tracked-his-bike-ride-past-burglarized-home-made-him-n1151761 https://www.forbes.com/sites/thomasbrewster/2018/10/23/feds-are-ordering-google-to-hand-over-a-load-of-innocent-peoples-locations/?sh=6584ce0a5a0d https://www.eff.org/files/2020/07/02/chatrie-google-amicus.pdf https://www.wired.com/story/geofence-warrants-google/ https://www.eff.org/files/2020/07/02/chatrie-google-amicus.pdf, page 18. https://www.nysenate.gov/legislation/bills/2021/A84You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
|
|
