By: Maura Arnold
In 2021, we live in a world that operates largely on our phones and computer devices. Many people, however, fail to realize how much of that data is collected by third-party companies. Even further, many fail to realize that this information we take for granted every day can be turned over to law enforcement officials. Information such as our location data is something that can be an extremely effective tool for law enforcement.
Geofence warrants, also known as “reverse-location warrants,” are a new concept to the world of criminal justice. At its core, geofencing is when a virtual border is drawn around a predefined geographical area where data can be gathered on those who enter the area. Outside of a criminal law context, geofencing is used for marketers who are trying to target specific audiences for ads. First utilized in 2016 by federal law enforcement, geofence warrants allow law enforcement officers to collect anonymized information from Google from any kind of device that was in a specific geographic area in a specific period of time. Law enforcement officers then ask Google for specific user information from any device they may decide could belong to a suspect. Essentially, geofence warrants let law enforcement conduct a search even when there is no known potential suspect of a crime.
Publicly, Google is the only tech company that releases information to law enforcement agents in response to geofence warrants. Because geofence warrants are a new law enforcement tool, there is no collection of data or guidance for oversight. Thus far, however, these warrants have been involved in solving robbery, burglary, and murder cases. Since first being used by federal law enforcement agencies in 2016, they have been adopted by local law enforcement who began using them in large numbers. Google reported that law enforcement requests for geofenced data between 2017 and 2018 went up 1500% and between 2018 and 2019 went up 500%. While Google is supposed to notify an individual if their data is collected for law enforcement purposes, it can often be sealed or requested under a gag order.
There is an obvious benefit to using geofence warrants. They allow law enforcement to solve crimes that may otherwise go unsolved because there is no identifiable suspect. For example, police have used geofence warrants to solve murder investigations. In Georgia, police solved a murder case by using geofence data to find what cellphones were in the area where a murder of a 31-year-old man took place after it went unsolved for months. In this case, the geofence warrant gave long-awaited answers to anxious family and community members affected by this heinous murder.
There are also serious drawbacks to the use of geofence warrants. To start, these warrants pick up on any device that was in the area of the crime, not just the devices of individuals who may have been involved in the crime. As a result, innocent people can become the target of investigations. In Arizona, a man was arrested on murder suspicions and spent a week in jail before investigators found evidence that exonerated him. As a result, he lost his job and his car.
Additionally, there is speculation that police use geofence warrants to gather information on protestors. This is particularly alarming in the wake of Black Lives Matter and police brutality protests that occurred across the country in the summer of 2020. Thousands of people were arrested following these protests and the DEA was given authority to conduct surveillance on the protestors themselves. The reason this could be so particularly problematic is that it could identify any single person at a protest regardless of if there was any suspicion of wrongdoing.
The question remains of whether or not these warrants are constitutional. Civil liberties groups argue that the main issue with geofence warrants is how much information from innocent individuals law enforcement officials can obtain. Under the Fourth Amendment, Americans are protected from “unreasonable searches and seizures” and warrants may only be issued with probable cause that “particularly describe[es] the place to be searched, and the persons or things to be seized.” Under a geofence warrant, there is no particular person or place and no limit on how many people are included regardless of their connection to a crime. Police argue that geofence warrants are no different than other types of surveillance.
Because these warrants are so new, there is little case law as to whether or not they are constitutional. The first federal court decision regarding these warrants argued that they are not in themselves “categorically unconstitutional” but that investigation lacked probable cause to collect vast location data from phones of people who had no connection to a crime other than being nearby when it occurred. In 2020, however, two federal courts found the use of these warrants to be unconstitutional where they were overbroad and failed to meet the particularity requirement.
Ultimately, it’s unlikely that it would have a large impact on law enforcement if they were to be found unconstitutional. While geofence can be an effective tool for solving cold cases with no suspects, they pose a significant risk to innocent citizens. Law enforcement has other means to investigate crimes and those will not disappear if geofence warrants do. While they have some benefits, they have significant drawbacks to personal liberties.
Student Bio: Maura Arnold is currently a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Prior to law school, Maura received a Bachelor of Arts Degree in English Literature and Italian Language from the College of the Holy Cross.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
