‘Geofence’ warrants threaten the privacy of every phone user

By Reilly Stephens for RealClearWire

The last time your phone asked you to allow this or that app to access your location data, you might have had some apprehension about what Apple or Google know about you. You may have worried about what might result or read The use of China data to track anti-lockdown protesters. What you probably didn’t know is that Google has already searched your data on behalf of the federal government to see if you were involved in January 6th.^e.

But last month, the DC Federal District Court issued a notice in the case of one of the many defendants accused of firing the Capitol following the 2020 election.

And with that, Judge Rudolph Contreras became the first federal district judge to approve a “Geofence” warrant, approving a recent police innovation: searching the cell phone history of every American to verify who was in the area of a potential crime.

“Geofence” in this context refers to mobile phone location data collected by Google from users of its Android operating system, as well as iPhone users who use applications such as Google Maps. Location tracking can be turned off, but most users allow it for the convenience of getting directions, tracking their daily jog, or finding the nearest Chipotle. The government mandate required the location history of every Google account holder within a range of longitude and latitude roughly corresponding to the Capitol building on the afternoon of January 6, 2021, along with similar data from that morning and tonight (to screen Hill staff and security guards).

It’s not even clear that this information was even necessary: ​​This defendant was apprehended in the building that day, carrying knives and pepper spray, and features on various security cameras – his whereabouts are not not in question. Many of his co-religionists have been considerate enough to broadcast their antics live themselves. while tracking each Participating in what has been dubbed the Beer Belly Putsch is inconvenient, prosecutors have had no shortage of defendants, or evidence against them. But the government nonetheless decided to employ a level of mass surveillance unprecedented in history or criminal law.

He was only the second federal district judge to rule on such a warrant, and the first, in the Eastern District of Virginia, found it “invalid for lack of definite probable cause” (although that judge declined to strike down evidence based on other Fourth Amendment loopholes created by the Supreme Court).

This particular requirement comes from the Fourth Amendment itself, which asks that each mandate “describe in particular[e] the place to be searched and the persons or things to be seized”. This means that, for example, the mandate released last year for former President Trump’s Florida residence did not simply say “search the house”, but detail specific rooms to be searched for specific things (boxes of documents). The cops can’t — or at least aren’t supposed to — throw out your underwear drawer based on a tip that you’re hiding cocaine in your basement.

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It’s hard to imagine how a Geofence warrant could Never be particularized in the sense that the Fourth Amendment is intended to require. Traditionally, the government compiled a list of suspects and then asked the telephone company for records specific to them. Geofencing reverses the order of operations: now the government requires data from everyone, and only decides which of us is guilty or innocent after invading the privacy of both. In order to find phones in the Geofence, Google needs to search their entire repository – if you have a Google account, You were excavated alongside the authors. It is difficult to distinguish this approach from the practice that inspired the Fourth Amendment in the first place: the English “general warrants”, which gave customs officials wide latitude to search any house they chose for goods of smuggling.

Judge Contreras could be given some slack on the grounds that the existing Fourth Amendment law he is obligated to enforce comes from the era of pay phones and radio transmitters. Traditional doctrine revolves around “a citizen’s expectation of privacy” and argues that there are few such expectations in his public movements. It struck a perhaps reasonable balance between privacy and the needs of law enforcement at a time when if the police wanted to track you, they had to dedicate scarce manpower to maintaining a tail – Resource constraints generally limited surveillance to reasonably suspected individuals.

Over the past decade, the Supreme Court has been trying to figure out how to apply these principles to modern technology. In Riley v. California, the court held that unlike pockets and purses, police cannot automatically search the smartphone of anyone they arrest. Opinion has turned to the breadth of material available on our personal devices: you may keep a little personal information in your purse or wallet, but nothing beats what’s just a few clicks away. any iPhone: texts, emails, calendars, intimate photos, bank accounts, how many calories the owner consumed that day and which friends he paid money to in the past few weeks for what reasons. The Court held that this new reality required new rules of application of the law.

A few years later, in Carpenter v. UNITED STATES, the Supreme Court looked at the use of cell site location information, with the phone company’s registry showing which cell towers your phone connects to. This data provides a rough approximation of your location, but without the precision of Google’s location data – a given cell tower reduces your location to a few blocks, while Google’s estimated margin of error is on average closer to 100 meters. The Supreme Court said the cell site’s data required a warrant, a departure from existing law that said privacy could not be expected of its public movements. And the cops in Carpenter had identified a specific phone belonging to their suspect and matched its locations to a series of thefts – they hadn’t asked Verizon to track all phones in Michigan and Ohio.

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You don’t have to have sympathy for QAnon’s shamans and oath-breakers to judge that this kind of digital net gives law enforcement new and often frightening ways. The Fourth Amendment protects the rights of the accused in criminal prosecution, and denying those protections to the guilty will ultimately harm the innocent. Police could demand location data for every phone brought to a BlackLivesMatter rally or NRA convention; they could identify every woman who visits an abortion clinic or attends the March for Life.

Federal criminal law has metastasized to the point where the average person probably commits multiple federal crimes in an average day – which one of us gets prosecuted mostly depends on the priorities and whims of law enforcement. If you want a vision of the future, imagine your phone reporting you to the cops, forever.

Syndicated with permission from RealClearWire.

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