by Jayson Hawkins

Orwell’s warning that “Big Brother is watching” has hung over western society for decades, sometimes confirmed by revelations of unauthorized government wiretaps, sometimes rendered ridiculous by the paranoid rantings of conspiracy theorists. In the post-9/11, cyberspace driven, the Patriot Act world of Edward Snowden and Wikileaks, however, the Orwellian image of the surveillance state seems almost quaint and understated. Every news cycle brings new evidence of the ubiquity of government surveillance, more instances of tech corporations unable or unwilling to protect their customers’ privacy, and astonishingly compliant courts that rubber-stamp whatever shoddy warrant requests police submit for their approval.

In this environment, new revelations about the reach of the surveillance state lose their shock value, and so it was no surprise that a recent article in Forbes detailing an alarming discovery about “keyword warrants” garnered little attention, despite the alarm bells sounded by civil liberties advocates. In documents accidentally unsealed by the Justice Department, Thomas Brewster, an associate editor and journalist at Forbes, uncovered the existence of a warrant sent to Google asking the company to provide information on anyone who had searched for the name or address of a kidnapping victim during a 16-day period.

It is unknown how many names or what other data Google provided. The investigation is still ongoing, and even though Google responded to the warrant in mid-2020, no arrests have been made. The particular case at issue in the Forbes discovery does not, in itself, trigger alarms in the casual observer, but the technique in question should raise concerns. There is a significant difference between a theoretical warrant seeking information about a specific arson suspect’s search history and one looking for the names and IP addresses of everyone who searched the word ‘arson.’ One gathers data on an identified person of interest; the other is a fishing expedition that will surely sweep up innocent citizens in its intentionally wide net.

These warrants rarely see the light of day. Prior to the instance described above, only two other keyword warrants had been made public. One was a search for anyone who had looked up the name of a victim in an arson case; the other asked Google to provide information on anyone who had searched for a fraud victim’s name in Minnesota. The rarity of these revelations stands in stark contrast to the near-pedestrian nature of the cases involved. It seems logical to assume that keyword warrants are troublingly common, especially considering that the Forbes discovery stemmed from documents inadvertently unsealed and that even before the article went to print another case was discovered in relation to a pipe bomb investigation in Austin, Texas.

The potential value of the data hoovered up in such searches also points toward the conclusion that police are making far more use of keyword warrants than has been disclosed. Jennifer Grannick, surveillance and cybersecurity counsel at the American Civil Liberties Union, was unambiguous about the potential power and danger of this tool in a statement to Forbes, “Trawling through Google’s search history database enables police to identify people merely based on what they might have been thinking about, for whatever reason, at some point in the past. This is a virtual dragnet—akin to mind reading powered by the Google time machine. This never-before-possible technique threatens First Amendment interests and will inevitably sweep up innocent people—To make matters worse, police are currently doing this in secret, which insulates the practice from public debate and regulation.”

The kidnapping case was supposed to remain secret, too, but the Justice Department not only erred in unsealing the warrant, it also revealed the identity of the underage victim by publishing her name, phone number, and Facebook profile. The Department declined to comment for the Forbes article. The common rebuttals to concerns about revelations of this type are applicable here as well. It is true that searches like those described above could provide priceless links in important investigations and, if properly framed, are unlikely to affect the innocent or uninvolved. These rebuttals, however, must be weighed against the potential for abuse that such tools offer, especially in this age where police are increasingly involved in investigations that link criminal activity with a particular ideology.

What if, for example, federal agents investigating the civil unrest that followed the murder of George Floyd asked for a warrant detailing the search histories of everyone who had Googled “Black Lives Matter” or “Defund the police”? From the opposite perspective, how happy would vocal advocates of “law and order” be if the same federal agents built profiles on everyone who searched “stop the steal” in their investigations of the insurrection on January 6, 2021?

Considering that many Americans already assume that searches involving Islam are automatically logged, the potential for abuse is more than obvious. Added to this is the government’s effort to keep the new warrants out of the public eye, and their refusal to comment when that effort fails. It should come as no surprise that civil liberties advocates are concerned. Google is less concerned, at least at the corporate level. When asked about keyword warrants, a Google spokesperson replied: “As with all law enforcement requests, we have a rigorous process designed to protect the privacy of our users while supporting the important work of law enforcement.”

Google has a track record of cooperating with police that would seem to belie the guarantees in their statement. In the past, the police have extensively used so-called “geo-fence” warrants (also called “reverse warrants”) that allow police to work their way backwards through masses of accumulated data by gathering identifying information on all the phones used in a particular area across a specific time frame. This allows the cops to pull the proverbial needle from a haystack, then go back to Google for information that can link the phone to a user. These warrants have yet to be sanctioned by higher courts, and their future, like that of keyword warrants, is unclear. Google is not alone in its compliance with dodgy warrants.

Other big search engine companies like Bing and Yahoo also track users and store search histories in their databases so that they can monetize the habits of their users in a variety of ways. This practice is what allows them to comply with these broad warrants in the first place, and to date, none of these companies has shown any desire to challenge the legality of the police demands.

For users concerned about the government perusing their private activities at will, there are alternatives. DuckDuckGo offers search services that give the same results as Bing but without data storage. Even with enhanced privacy protections, big search engines usually give algorithm-driven results, but services like Searx and BraveSearch are independently indexed. The structure of these services makes keyword searches and geofence warrants useless.

It is unclear how keyword and geofence searches will fare when legally challenged. Digital searches are a new area of law, and though courts have generally favored privacy, the whole field is mostly unsettled. In this case, the principle in play seems similar to weighing how far a police search of the general premises allows searches of specific areas belonging to a variety of individuals.

The process of a keyword search is roughly analogous to searching and rummaging through every safety deposit box in a bank to potentially discover probable cause with respect to a single individual and then search the home of the person owning that box. The courts would never condone such a search, but thus far, they have not struck down digital searches of the same nature. It is equally unclear how common keyword searches are because the government works hard to keep these fishing expeditions secret. Forbes and the Electronic Frontier Foundation were able to uncover evidence of about a half-dozen over the previous five years, but these are likely the tip of the iceberg. How many more of these searches become public, and how the courts will treat them, remains to be seen.  

Sources: reason.com, techdirt.com, nydaily.com, forbes.com

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