Controversial Practice Already “Categorically” Prohibited by Lower Courts
As we have previously covered, law enforcement’s use of “geofencing” warrants, which uses GPS, cellular networks, and Wi-Fi to track location information of potential users at a specific time and place in the past, have come under increasing scrutiny in recent years as privacy experts warn about potential Fourth Amendment abuses from the practice. Essentially, geofencing warrants allow law enforcement to draw a virtual map over a time and place and request data for anyone or any phone that may have been there in the requested timeframe, sometimes referred to as a dragnet approach to seeking the information. This is fundamentally different from a traditional search warrant which has generally required particularity to be valid, such as naming a suspect, a specific device, or at minimum articulate individualized suspicion to have hopes of being approved by a judge. On the other hand, a geofence warrant does not name or focus on anyone particularly and opponents argue this turns innocent bystanders into suspects and results in the impermissible search and seizure of protected and private information. Now, the Supreme Court is set to weigh in to determine the Constitutionality of the practice in the age of smartphones which track an ever increasing amount of data.
The case, Chatrie v. United States, stems from a 2019 bank robbery in Northern Virginia. After exhausting other leads, police obtained a geofence warrant compelling Google to search the accounts of all its hundreds of millions of users to see if any one of them appeared near the crime scene. The area covered by that warrant, several football fields in size, swept in an unknown number of entirely innocent people whose only offense was being somewhere in the vicinity at the time of the robbery and using Google services in some capacity during that time, including “numerous homes, businesses, and a church.” As the Electronic Frontier Foundation, the American Civil Liberties Union (ACLU), the ACLU of Virginia, and the Center on Privacy & Technology at Georgetown Law argued in their amicus brief to the Court, they warned against the widespread use of said technology, “This is not traditional police work, but rather the leveraging of new and powerful technology to claim a novel and formidable power over the people.” The brief cautions the Court against issuing a narrow ruling that implicitly authorizes future geofence searches based on different technical configurations or facts of a case, instead arguing that the Court should try and block the practice entirely as their overbroad nature should be seen as a constitutional violation of individual rights to be free from impermissible search and seizures by the government, as the warrants and searches at issue, “are just the kind of impermissible general warrants that the Framers of the Constitution so reviled” according to EFF Surveillance Litigation Director Andrew Crocker. The warning is well-founded, as Google is not the only company that collects detailed data on its users. A vast, largely invisible ecosystem of data brokers, including advertising networks, mobile apps, and other telecommunications companies have consistently sought to aggregate data on virtually all smartphones wherever they can, which law enforcement agencies have increasingly tried to buy the data for investigative purposes directly from these brokers. Any ruling will have broad implications for privacy in our increasingly digital age and could potentially protect individuals from further generalized warrants by law enforcement.
