Updates
Fifth Circuit Rules that Geofence Warrants Are Inherently Unconstitutional
August 13, 2024
In a recent opinion in United States v. Jamarr Smith, the Fifth Circuit ruled that geofence warrants are inherently unconstitutional. This ruling breaks from ones issued recently by the Fourth Circuit and the Colorado Supreme Court, which condoned the government’s use of the invasive warrants. It potentially tees up a landmark Supreme Court Fourth Amendment case sometime in the near future.
Geofence warrants are a relatively new, extremely broad type of law enforcement investigative technique. Normally, search warrants specify a specific person or place to be searched based on probable cause that the person or place will have evidence of a crime. But geofence warrants turn this process on its head, instructing companies like Google to search every single user’s entire location history to detect who was present in a certain area at a certain time. This makes them a type of “reverse warrant,” similar to reverse keyword warrants that identify anybody who has entered certain search terms online.
Since reverse warrants were introduced as rare emergency measures in the mid-2010s, they have quickly become some of law enforcement’s favorite go-to ways to investigate a case. Officers now serve companies like Google with tens of thousands of reverse warrants per year.
In the Fifth Circuit case, two defendants accused of robbery challenged the use of a geofence warrant to place them near the scene of the crime. The Fifth Circuit broke with the Fourth Circuit in ruling that are engaging in a search when they order Google to look through its entire location history database for accounts near the scene of the crime. The Fourth Circuit in United State v. Chatrie ruled that such activities were not a search because people voluntarily expose their locations to Google, so they cannot claim to have an expectation that that data will remain private. The Fifth Circuit disagreed, noting that people are often not really acting voluntarily when sharing this data with Google:
“It is true that this case is slightly distinguishable from Carpenter; namely, that users opt in to having their Location History monitored. . . . . Again, with great respect, we are not convinced. As anyone with a smartphone can attest, electronic opt-in processes are hardly informed and, in many instances, may not even be voluntary. . . . Google’s Location History opt-in process is no different. As described above, users are bombarded multiple times with requests to opt in across multiple apps. These requests typically innocuously promise app optimization, rather than reveal the fact that users’ locations will be comprehensively stored in a “Sensorvault,” providing Google the means to access this data and share it with the government. Even Google’s own employees have indicated that deactivating Location History data based on Google’s “limited and partially hidden” warnings is “difficult enough that people won’t figure it out.””
Finding that a search had occurred, the Fifth Circuit then ruled that the warrant authorizing the search was unconstitutional because it was not narrowly drawn enough.
“When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.”
This ruling is notable because it would apply to any reverse warrant, not just the one in this case. Effectively, it rules them all unconstitutional. This is an important and needed pushback on this extremely broad and invasive technique.
EPIC regularly submits amicus briefs and regulatory comments in cases involving people’s locational privacy.
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