By: Alex Crowley
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Fourth Amendment of the United States Constitution
Under the Fourth Amendment, if police can establish probable cause that searching a particular person or place will reveal evidence of a crime, they can obtain a warrant from a neutral magistrate authorizing the limited search. Traditional warrants apply to specific persons and places of interest. Reverse search warrants are issued to data-holding companies to identify individuals who may be suspects in crimes. Geofence warrants are the latest type of reverse search warrant.
Geofence warrants allow law enforcement officials to obtain anonymized data, from a data aggregator like Google, on every location-trackable device (e.g., cell phones, smart watches, laptops, etc.) in a specific radius at a specific time. Essentially, with the assistance of this relatively new technology, officers can work backwards to place potential suspects at the scene of the crime when other less controversial methods have failed. While geofence warrants permit officers to identify suspects in otherwise dead-end criminal investigations, they also create risk of inadvertently bringing innocent parties into the investigation. Zachary Mccoy, an avid biker, who officers nearly charged with burglary after he incidentally rode past the burglary in progress, knows this all too well.
In the recent case of United States v. Chatrie, Judge M. Hannah Lauck of the United States District Court for the Eastern District of Virginia held that a geofence warrant violated Fourth Amendment protections by allowing officers to gather the location history of people near a bank without having evidence that they participated in the bank robbery under investigation. She wrote that, “[t]he warrant simply did not include any facts to establish probable cause to collect such broad and intrusive data from each of these individuals.” However, she noted that the ruling did not indicate that geofence warrants can never satisfy the Fourth Amendment and urged legislative action on the issue. Prior to Chatrie, geofence warrants had gone mostly uncontested by courts, with rare exceptions.
Defense attorneys and privacy advocates have raised a litany of issues involving geofence warrants. They argue that permitting such broad searches allows the government to secretly collect data from civilians, most of whom did not participate in the crime of interest. Furthermore, they argue that these warrants put innocent people at risk of wrongful arrest. The case of Zachary Mccoy illustrates this unfortunate possibility.
Conversely, law enforcement officials argue that geofence warrants are constitutional because users of these location-trackable devices agree to have their data tracked. Furthermore, close cooperation with these tech giants, officers claim, ensures anonymity of personal data until one or more devices raises suspicion.
David Saunders, a partner at McDermott Will and Emery, noted that all decisions regarding the constitutionality of geofence warrants have been limited to the specific warrant under scrutiny. He said, “[e]ven in the recent ruling, [United States v. Chatrie], the judge did not say these warrants are never going to be acceptable, in fact, the judge decided to not go that far and just focus on this [geofence] warrant, what the defects are and why it violated the Fourth Amendment.” He goes on to say that the recent increase in geofence warrant requests will likely lead to increased data privacy litigation, and that, “. . . we will get a growing body of law that will ultimately either end up in the Supreme Court or develop into rules of the road through the trial court system.”
The use of geofence warrants in criminal investigations poses a significant threat to Fourth Amendment protections against unreasonable search and seizure. These warrants grant law enforcement officials access to civilians’ private data without probable cause, or for that matter, without any suspicion at all. Worse yet, these citizens are oblivious to their involvement in a criminal investigation unless, of course, they are wrongfully charged with the crime. The increasingly common use of geofence warrants in criminal investigations exemplifies an increase in police power and will almost certainly amplify wrongful suspicion, surveillance, and harassment against innocent civilians.
It turns out that these warrants are so invasive of user privacy that big tech companies like Google, Microsoft, and Yahoo support their ban. The companies recently issued a public statement of support for a bill before the New York State legislature that would prohibit government use of geofence warrants. They wrote, “[t]his bill, if passed into law, would be the first of its kind to address the increasing use of law enforcement requests that, instead of relying on individual suspicion, request data pertaining to individuals who may have been in a specific vicinity.” This showing of support sent a strong message against the use of geofence warrants, especially coming from companies that have a checkered history of benefitting from users’ privacy data and enabling large-scale government surveillance.
Trading fundamental rights for lower crime rates is a slippery slope to a Big Brother totalitarian state [George Orwell, Nineteen Eighty-Four (1949)]. While enabling officers to obtain geofence warrants during criminal investigations would lead to increased investigatory success, the violation of Fourth Amendment protections and the growing threat of wrongful suspicion, surveillance, and harassment against innocent civilians is too significant to ignore. Judge Lauck’s ruling likely signals the beginning of the end for geofence warrants, and for good reason.
Student Bio: Alex Crowley is a second-year day student at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law. Alex received a Bachelor of Science Degree in Biology from Stonehill College in 2017.
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.
