by Casey J. Bastian

Federal and state law enforcement agencies have been increasingly using mobile device data warrants as a modern investigative tool. Authorities present technology service providers, such as Google, with “reverse location” warrants seeking electronic data information of all persons whose devices may have been at or near the location where a crime was committed.

These warrants, referred to as “geofence” warrants, utilize location data to cast a wide net in search of all possible suspects in a large geographical area where criminal activity has occurred.

The Fourth Amendment requires that warrants shall describe with particularity the place to be searched and the individuals or things to be seized. The law enforcement agency applying for a warrant is to be very specific about the who, what, and where of the target to be searched or seized.

Stephen Smith is the director of the Fourth Amendment and Open Courts at Stanford’s Center for Internet and Society. Smith also is a retired federal judge, and he believes that a ruling as to the “particularity” of a geofence warrant may hinge on the warrant only yielding information about suspects.

The chair of the ABA (American Bar Association) Science & Technology Law Section’s Privacy and Computer Crimes Committee, Jody Westby, likens geofence warrants to “putting a net in the ocean, then inspecting every fish that comes up.”

Meet Okello Chatrie. Four months after the Call Federal Credit Union in Midlothian, Virginia, was robbed, the U.S. Department of Justice indicted Chatrie for the crime. The only evidence investigators had on May 20, 2019, was a video of a man wearing sunglasses and a reflective vest entering the credit union, pulling a gun, and leaving with $195,000, reports Wendy Davis in an article in the ABA Journal. Authorities then presented Google with a geofence warrant for all the data from every Google account holder within 150 meters of the credit union between 3:50 and 5:50 pm on May 29, 2019. The net was cast, and Google returned one hour of location data from “19 anonymized accounts.” The suspect pool was winnowed down to three people, and Google provided the individual names, email addresses, subscriber information, and phone numbers for all three, the ABA reports. One of the identified suspects was Chatrie.

Geofence warrants were first used in 2016. “By late 2019, Google says it was receiving up to 180 such requests for warrants each week, reflecting a 1,500% increase between 2017 and 2018 and a 500% increase from 2018 to 2019,” the ABA Journal reports.

As use of such warrants has increased, so has litigation of its constitutionality. Chatrie’s lawyers are moving the federal court in Richmond to suppress the evidence. The motion argues the warrant is unconstitutional and characterizes the warrant as “a general warrant purporting to authorize a classic dragnet search of every Google user who happened to be near a bank in suburban Richmond during rush hour on a Monday evening.”

As of December 2020, three federal judges had issued written opinions about the legality of geofence warrants. Two refused to issue the warrants. U.S. Magistrate Judge David Weisman wrote that a warrant for a general location in a densely populated city for a 45-minute period, even on a specific date, would yield cellular data on a vast of majority of people who have “nothing whatsoever to do with the offenses under investigation.”

Civil rights advocates say the geographic scope of these warrants provides law enforcement with information from private locations like homes or doctors’ offices. “The technology does not differentiate between inside and outside. It is, by definition, going to locate people inside of constitutionally protected spaces,” Michael Price, counsel for the Fourth Amendment Center at the National Association of Criminal Defense Lawyers and one of Chatrie’s attorney, was quoted as saying.

Prosecutors insist that these warrants are legally viable and a valuable part of solving crimes, especially “pattern crimes,” such as arson, burglary, or sexual assaults. Weisman opined as to the possible constitutionality of the warrants by writing that limiting the geographic size and quantity of targets would solve the problems of a warrant’s lack of particularity or it being considered overbroad. Another U.S. Magistrate Judge, Sunil R. Harjan, wrote that the important legal issue is one of “reasonableness,” not the impact on one uninvolved person’s privacy rights. Civil rights advocates believe that diminishing a person’s rights in any capacity is not reasonable under the Constitution. “Unnecessary surveillance leads to police stops, false arrests, false convictions and police violence,” says Albert Fox Cahn, founder and executive director of the Surveillance Technology Oversight project.

Cahn’s concerns are highlighted by the false arrest of Arizona resident Jorge Molina, who was only arrested for a killing because information from Google placed a device Molina used in the area around the time of the murder. Police eventually arrested another man. Molina is now suing for defamation and false arrest.

In April, New York State Senator Zellnor Myrie and Assembly member Dan Quart introduced the Reverse Location Search Prohibition Act. The act would ban geofence warrants and require any evidence gathered through such means to be suppressed in New York. This was after a warrant was used to investigate an incident at a legal protest. Quart said, “I have great concerns ... a geofence warrant could be specifically targeted towards those engaging in a lawful protest.” Quart added that law enforcement can solve crimes without such warrants. 

Source: abajournal.com

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